Tenth Amendment Centerhttps://tenthamendmentcenter.com Concordia res Parvae CrescuntWed, 20 Mar 2019 12:01:23 +0000en-UShourly1https://wordpress.org/?v=5.0.4https://tenthamendmentcenter.com/wp-content/uploads/2013/03/cropped-TAC-gravatar-full-32x32.jpgTenth Amendment Centerhttps://tenthamendmentcenter.com 3232Presidential Budgets: When A Cut isn’t a Cuthttps://tenthamendmentcenter.com/2019/03/20/presidential-budgets-when-a-cut-isnt-a-cut/ Wed, 20 Mar 2019 12:01:23 +0000http://tenthamendmentcenter.com/?p=28340Remember when a budget cut was actually a cut in spending rather than a cut in the expected increase in spending? President Trump’s proposed budget calls for $4.7 trillion in spending in 2020. That would be a 5 percent increase over projected 2019 outlays. Although the budget supposedly “slashes” spending on some domestic programs it ramps […]]]>

Remember when a budget cut was actually a cut in spending rather than a cut in the expected increase in spending?

President Trump’s proposed budget calls for $4.7 trillion in spending in 2020. That would be a 5 percent increase over projected 2019 outlays. Although the budget supposedly “slashes” spending on some domestic programs it ramps up defense spending by 4 percent to $750 billion, according to reporting by the Washington Post.

The proposal includes $8.6 billion new spending for a border wall, some $200 billion earmarked for as yet to be defined “infrastructure spending,” and a $3.7 billion increase in the Department of Homeland Security’s budget.

The Trump budget would have to dump $165 billion into a war account called the Overseas Contingency Operations (OCO) in order to boost the Pentagon budget while remaining under congressional spending caps.

When Trump revealed his budget, Democrats and many mainstream political publications went ballistic over “cuts” to domestic programs that would total about 5 percent overall. Some of the agencies that would supposedly feel the slash of the budget ax include the EPA (31 percent cut), the Department of Energy (11 percent cut), the Department of Transportation (22 percent cut) and the Department of Health and Human Services (12 percent cut).

The proposed budget would also “slash” social safety net programs. It would reduce Medicare by about $845 billion over 10 years and Medicaid by $241 billion over 10 years, according to reporting by the Washington Post.

But here’s where things get tricky. In Washington D.C. parlance, a cut really isn’t a cut. It’s actually a reduction in the projected increase. An agency can actually spend more money year-over-year and pundits call it a cut if it was lower than the previous budget estimate.

For example, let’s say under the current budget the Department of ABC was slated to spend $1 billion more next year than this year. In the new budget, the department only gets to spend $800 million more than it did last year. This increase the department’s actual budget would count as 20 percent cut even though the agency will actually spend more money year-over-year.

So, as Politifact explained, the proposed “cuts” to Social Security, Medicare and Medicaid come with a “standard caveat.”

“They refer to future spending compared to the amount that would be spent under current law. So a budget can call for more dollars year after year, but if that’s less than what population growth and inflation and other factors would predict, both the White House and lawmakers refer to that as either savings or cuts (depending on which side of the debate they are on).”

This is how you end up with billions of dollars in spending cuts that add up to trillion dollar deficits.

Presidential budgets mean little in practice. Congress ultimately passed budgets and sets spending levels, and it rarely follows through on presidential budget cuts. We certainly didn’t see any significant reductions in spending when the GOP controlled both houses of Congress and the White House. But the presidential budget does open a window that allows us to peek in on the administration’s priorities. And Trump’s budget reveals that addressing out of control spending and the rapidly upward-spiraling national debt is not a priority.

The budget appears to balance in 15 years, according to a summary by ZeroHedge. But this assumes 3 percent economic growth over that time span. The U.S. economy didn’t even hit 3 percent growth in 2018 – a year in which the economy was supposedly booming. On top of that, debt retards economic growth. Studies have shown that GDP growth decreases by an average of about 30 percent when government debt exceeds 90 percent of an economy. By some estimates, U.S. debt already stands at around 105% of GDP. Ever since the U.S. national debt exceeded 90 percent of GDP in 2010, inflation-adjusted average GDP growth has been 33 percent below the average from 1960–2009, a period that included eight recessions.

In other words, we can expect the increasing debt to put a continually increasing drag on growth. In fact, the CBO estimates 1.8 percent annual growth over the next decade – and this assumes no recession.

When you boil it all down, Trump the best we can say is that the Trump budget would slow spending growth in some areas, but it wouldn’t actually cut spending anywhere. It means more trillion dollar deficits and skyrocketing debt.

Like Donald Trump, Thomas Jefferson faced a huge national debt when he took office in 1800. But unlike his modern counterparts, Jefferson didn’t grow the debt further. In fact, he significantly whittled down the debt. Jefferson and his fellow Democrat-Republicans in Congress knocked about $26 million ($420.8 million in 2018 dollars) off the debt through his two terms in office — this despite taking on an additional $13 million of added debt for the Louisiana Purchase.

How did they do it?

Well, it was pretty simple. They cut spending – both domestic and military – and applied the savings to pay down debt.

Trump seems to be taking the exact opposite approach.

]]>Bipartisan Attacks on the Second Amendmenthttps://tenthamendmentcenter.com/2019/03/18/bipartisan-attacks-on-the-second-amendment/ Mon, 18 Mar 2019 20:22:30 +0000http://tenthamendmentcenter.com/?p=28329It is no coincidence that the majority of mass shootings take place in “gun-free zones,” where shooters know their targets will be unarmed. ]]>

The House of Representatives recently passed legislation that would expand the national background check system to require almost everyone selling firearms, including private collectors who supplement their incomes by selling firearms at gun shows, to perform background checks on the potential buyers. The bill has a section purporting to bar creation of a national firearms registry. However, the expanded background check system will require the government to compile lists of those buying and selling guns. In other words, it creates a de facto national gun registry.

Similar to the experience with other types of prohibition, making it more difficult to legally buy a gun will enhance the firearms black market. Criminals, terrorists, and even deranged mass shooters will thus have no problem obtaining firearms.

It is no coincidence that the majority of mass shootings take place in “gun-free zones,” where shooters know their targets will be unarmed. This shows that any law making it more difficult for Americans to own and carry firearms makes us less safe. If Congress really wanted to reduce the incidence of gun violence, it would repeal the Gun-Free School Zones Act. This law leaves children easy prey for mass shooters by mandating that public schools be “gun-free zones.”

A nationwide system of gun registration could be a step toward national gun confiscation. However, antigun bureaucrats need not go that far to use the expanded background check system to abuse the rights of gun owners. Gun owners could find themselves subject to surveillance and even harassment, such as more intensive screening by the Transportation Security Administration, because they own “too many” firearms.

Republican control of the White House and the Senate does not mean our gun rights are safe. Republicans have a long history of supporting gun control. After the 1999 Columbine shooting, many Republicans, including many who campaigned as being pro-Second Amendment, eagerly cooperated with then-President Bill Clinton on gun control. Some supposedly pro-gun Republicans also tried to pass “compromise” gun control legislation after the Sandy Hook shooting.

Neoconservative Senator Marco Rubio has introduced legislation that uses tax dollars to bribe states to adopt red flag laws. Red flag laws allow government to violate an individual’s Second Amendment rights based on nothing more than a report that the individual could become violent. Red flag laws can allow an individual’s guns to be taken away without due process simply because an estranged spouse, angry neighbor, or disgruntled coworker tells police the individual threatened him or otherwise made him feel unsafe.

President Trump has joined Rubio in wanting the government to, in Trump’s words, “take the guns first, go through due process second.” During his confirmation hearing, President Trump’s new Attorney General William Barr expressed support for red flag laws. California Senator and leading gun control advocate Dianne Feinstein has expressed interest in working with Barr to deprive gun owners of due process. It would not be surprising to see left-wing authoritarians like Feinstein work with right-wing authoritarians like Barr and Rubio on “compromise” legislation containing both a national red flag law and expanded background checks.

My years in Congress taught me that few politicians can be counted on to protect our liberties. Most politicians must be pressured to stand up for freedom by informed and involved pro-liberty citizens That is why those of us who understand the benefits of liberty must remain vigilant against any attempt to erode respect for our rights, especially the right to defend ourselves against private crime and public tyranny.

]]>The Founders’ Understanding of “Invasion”https://tenthamendmentcenter.com/2019/03/15/the-founders-understanding-of-invasion/ Fri, 15 Mar 2019 15:53:37 +0000http://tenthamendmentcenter.com/?p=28323Even by the middle of the 18th century, the English language lacked a widely-used set of standard definitions to English words. While English dictionaries existed, those that did were widely considered deficient for a variety of reasons. Famous Scottish philosopher and historian, David Hume, complained that the English-speaking world possessed “no Dictionary of our Language, […]]]>

Even by the middle of the 18th century, the English language lacked a widely-used set of standard definitions to English words.

While English dictionaries existed, those that did were widely considered deficient for a variety of reasons. Famous Scottish philosopher and historian, David Hume, complained that the English-speaking world possessed “no Dictionary of our Language, and scarce a tolerable Grammar.”

After a decade of intense work, famed English writer Samuel Johnson provided a remedy to these qualms through the publication of a two-volume dictionary. First released in 1755, his work had a profound effect on English literature and western civilization in general.

For almost two decades after its publication, Johnson’s Dictionary was still considered the seminal dictionary for the English-speaking world. This timeframe included that in which the American founders drafted and ratified legal documents, including the United States Constitution. As the contemporary gift to the historical scholar, Johnson’s work can be used to reach a deeper understanding of common terminology in its time of use.

With this background in mind, a firestorm of controversy has recently erupted over what is meant by the word “invasion” that appears in both Article I, Section 8, Clause 15, and Article IV, Section 4 of the Constitution. Respectively called the Militia Clause and the Guarantee Clause, these powers were meant to assure that the general government would protect the states from invasions.

However, the two clauses have recently been cited by those who support sending military forces to the southern border to restrict illegal immigration, with some going as far as to suggest that the president has a unilateral power to do so. It seems reasonable, then, to take a glance back and analyze what the American founders had in mind when they constructed the protection from invasion authority.

According to Jonson’s 1785 English dictionary, which was widely available as the Constitution was drafted, the term “invasion” is defined as follows:

The first definition – “hostile entrance upon the rights or possessions of another; hostile encroachment,” provides several specific examples for clarification. The first cites 1 Samuel 30 from the Bible. This chapter describes David’s conquest of the Amalekites. In this pursuit, David captured an escaped slave, who told him that his master had recently waged war upon a group of elite mercenaries known as the Cherethites. According to the Bible, the Cherethites were part of Israel’s army.

In the second case, exposition is given through an allusion to an invasion of the Ausonian shore, a reference to the southern and central regions of Italy. In this situation, the term is characterized by “arm’d invasion,” leading Ausonian nations to “embrace the war.”

The third case also references a specific military invasion that took place in 1066, where William the Conqueror raised an army with the intent of invading the English isles and overthrowing the Anglo-Saxon dynasty.

All three examples point to cases in which military forces were equipped with weaponry, fought behalf of a foreign power, and intended to commit physical violence against individuals in another country. Conversely, in no instance did the term refer to the migration of an individual, or even large groups, from one territory to another, where said individual(s) lacked intent to inflict military harm.

As to the second definition, “attack of a discase,” suggests a definition unconnected to military subjugation. However, with “discase” meaning to strip or undress, even this case relates to a deliberate attempt to cause physical harm to another person. Therefore, even with the argument that the word “invasion” has a broader application on this basis, it would still require one to hold that such invasion would include a physical attack rather than mere relocation.

Supporting this view is the definition of the term “invader” from the same dictionary:

As we can see, each of the examples cited in the first definition point to military actions, including an invasion of Scotland by Spanish invaders and a reference to invaders partaking in battle in Paradise Lost.

In addition, another example implies that the natives of Attica, a location in Greece, were never expelled because they had not faced the “fury of invaders.” Again, all examples suggest that military coercion was a key component of an invasion. Definition two – “an assailant” – pertains only to an individual that physically attacks another.

Outside of Samuel Johnson’s work, other dictionaries confirm this understanding. Nathan Bailey’s famous dictionary, which Johnson used as a primary source of information for his own, also bolsters this conception of the term.

According to the 1763 printing of the work, to invade was to “attack or set upon.” To “set upon” meant to make a sudden and unexpected physical attack, which is similar to how the phrase is widely used today. Similarly, another dictionary, printed in 1753 by John Bevis, records that to invade was to “enter by force” or to “seize and lay hold of.”

Regardless of one’s personal disposition on immigration and military policy, the founders’ understanding of “invasion” did not pertain to mere travel or migration from one country to another.

On the contrary, the most prominent English dictionary available, the most widely adopted legal dictionary in the American states, and other popular dictionaries of the era all held the term to mean the projection of a physical attack.

Consequently, the ability militarize United States borders to stop mass migration is not expressly granted through the originally ratified version of the Constitution.

“Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency. Its grants of power to the federal government and its limitations of the power of the States were determined in the light of emergency, and they are not altered by emergency.” -Chief Justice Charles Evans Hughes (1862-1948)

Today, the United States Senate took a historic vote known as a negation, a statutory procedure whereby Congress nullifies an act of the president. The negation vote is authorized by the National Emergencies Act of 1976, which was written to permit the president to streamline government during an unforeseen crisis.

When Hurricane Katrina devastated New Orleans, President George W. Bush declared a state of emergency. That declaration enabled him to move government assets and materials to suffering folks without regard to environmental laws, public bidding laws or even local speed limits. But it did not permit him to spend money that Congress had not authorized, nor could he as president exercise any powers that the Constitution delegated to Congress.

President Donald Trump, in his recent declaration of national emergency at the U.S.-Mexico border, ordered the departments of Defense and Homeland Security to spend unused but unauthorized money in their budgets on building a 55-mile steel barrier — “a big, beautiful wall” — along a portion of that border. Because Congress has expressly and explicitly declined to authorize the funds for the construction of such a barrier, we have a constitutional conflict on our hands.

The conflict is more acute than just a difference of opinion. It is an issue for Trump of fidelity to his oath of office. Several of the statutes that Trump will be violating by spending unauthorized money on the border barrier he himself signed into law. In the presidential oath, the president agrees to enforce federal laws “faithfully” — whether he agrees with them or not.

The act itself fails to define what constitutes an emergency, but the courts — as is their job where a law is ambiguous — have generally defined an emergency as a sudden and imminent threat to life, liberty and property that cannot be addressed by the exercise of ordinary government powers.

Can the Congress amend the Constitution? Can it cede to the president powers that the Constitution has delegated to Congress? Every time the courts have addressed these questions, they have answered with a resounding NO.

The issue of whether the status of matters at the southern border rises to the level of emergency will soon be decided by a federal court. It will rule if in the present situation there is an A) sudden, B) unanticipated and C) true threat to life, liberty or property that D) cannot be addressed by the ordinary employment of government assets. If a court decides that any of the A through D factors is not present, that is the end of the inquiry; the court will enjoin the enforcement of Trump’s declaration because it does not fit within the definition of an emergency.

But if a court agrees with the president — that the months-long mass movement of migrants from Mexico to Texas is an emergency that cannot be addressed by ordinary means — it must then address the constitutional issues. Here, the law is clear.

Under the Constitution, only Congress gets to decide how money from the federal treasury shall be spent. When the president has asked for funds — here, to condemn private property and build the barrier — and Congress has said no, he cannot legally go out and spend the funds anyway. Some have argued that Congress has given away some of its powers to appropriate funds to the president during prior emergencies. And some have argued that the existence of an emergency gives new powers to the president. Such arguments betray gross ignorance of the Constitution.

Can the Congress amend the Constitution? The short answer to this is NO. Only three-quarters of the states can amend the Constitution. Yet, for generations, Congress and the president have engaged in a subtle amendment by consent. This has generally occurred when presidents have started wars — a congressional function — and Congress has looked the other way. Without judicial intervention — often nearly impossible because only a member of Congress would have standing to sue — Congress and presidents get away with this.

This amendment by consent is at the core of President Trump’s argument. He and his Republican colleagues in Congress have argued that Congress has given all presidents since 1976 new powers in emergencies. This is not possible under our system of constitutional government, even if all concerned did look the other way with a wink and a nod. Presidential power comes only from the Constitution, not from Congress.

In an ironic sense, those of us who believe that the Constitution means what it says are grateful to President Trump for teeing up this issue, expecting a judicial injunction. But no member of Congress can be faithful to her or his oath of office and still support Trump’s view of extraconstitutional powers.

The Senate has followed the House in voting to prevent President Trump from getting away with this. The price of him doing so far exceeds the construction costs of a border barrier. When a president exercises extraconstitutional power, he violates his oath to be faithful to the Constitution and he strikes at the core principle of the separation of powers. Such a strike irreparably undermines the basic protection of freedom in America itself.

In this case, the freedom being undermined is the right of the people to a government that obeys its own laws. Emergency does not create presidential power; only the Constitution does.

Our nation is being preyed upon by a military industrial complex that is propped up by war profiteers, corrupt politicians and foreign governments.

America has so much to offer—creativity, ingenuity, vast natural resources, a rich heritage, a beautifully diverse populace, a freedom foundation unrivaled anywhere in the world, and opportunities galore—and yet our birthright is being sold out from under us so that power-hungry politicians, greedy military contractors, and bloodthirsty war hawks can make a hefty profit at our expense.

Don’t be fooled into thinking that your hard-earned tax dollars are being used for national security and urgent military needs.

It’s all a ruse.

You know what happens to tax dollars that are left over at the end of the government’s fiscal year? Government agencies—including the Department of Defense—go on a “use it or lose it” spending spree so they can justify asking for money in the next fiscal year.

According to an investigative report by Open the Government, among the items purchased during the last month of the fiscal year when government agencies go all out to get rid of these “use it or lose it” funds: Wexford Leather club chair ($9,241), china tableware ($53,004), alcohol ($308,994), golf carts ($673,471), musical equipment including pianos, tubas, and trombones ($1.7 million), lobster tail and crab ($4.6 million), iPhones and iPads ($7.7 million), and workout and recreation equipment ($9.8 million).

Anyone who suggests that the military needs more money is either criminally clueless or equally corrupt, because the military isn’t suffering from lack of funding—it’s suffering from lack of proper oversight.

Certainly, nothing about the way the government budgets its funds puts America’s needs first.

The nation’s educational system is pathetic (young people are learning nothing about their freedoms or their government). The infrastructure is antiquated and growing more outdated by the day. The health system is overpriced and inaccessible to those who need it most. The supposedly robust economy is belied by the daily reports of businesses shuttering storefronts and declaring bankruptcy. And our so-called representative government is a sham.

If this is a formula for making America great again, it’s not working.

The White House wants taxpayers to accept that the only way to reduce the nation’s ballooning deficit is by cutting “entitlement” programs such as Social Security and Medicare, yet the glaring economic truth is that at the end of the day, it’s the military industrial complex—and not the sick, the elderly or the poor—that is pushing America towards bankruptcy.

We have become a debtor nation, and the government is sinking us deeper into debt with every passing day that it allows the military industrial complex to call the shots.

Simply put, the government cannot afford to maintain its over-extended military empire.

Having been co-opted by greedy defense contractors, corrupt politicians and incompetent government officials, America’s expanding military empire is bleeding the country dry at a rate of more than $32 million per hour.

The U.S. government is spending money it doesn’t have on a military empire it can’t afford.

As investigative journalist Uri Friedman puts it, for more than 15 years now, the United States has been fighting terrorism with a credit card, “essentially bankrolling the wars with debt, in the form of purchases of U.S. Treasury bonds by U.S.-based entities like pension funds and state and local governments, and by countries like China and Japan.”

For decades, the DoD’s leaders and accountants have been perpetrating a gigantic, unconstitutional accounting fraud, deliberately cooking the books to mislead the Congress and drive the DoD’s budgets ever higher, regardless of military necessity. DoD has literally been making up numbers in its annual financial reports to Congress—representing trillions of dollars’ worth of seemingly nonexistent transactions—knowing that Congress would rely on those misleading reports when deciding how much money to give the DoD the following year.

Unfortunately, the outlook isn’t much better for the spending that can be tracked.

A government audit found that defense contractor Boeing has been massively overcharging taxpayers for mundane parts, resulting in tens of millions of dollars in overspending. As the report noted, the American taxpayer paid:

$71 for a metal pin that should cost just 4 cents; $644.75 for a small gear smaller than a dime that sells for $12.51: more than a 5,100 percent increase in price. $1,678.61 for another tiny part, also smaller than a dime, that could have been bought within DoD for $7.71: a 21,000 percent increase. $71.01 for a straight, thin metal pin that DoD had on hand, unused by the tens of thousands, for 4 cents: an increase of over 177,000 percent.

That price gouging has become an accepted form of corruption within the American military empire is a sad statement on how little control “we the people” have over our runaway government.

The U.S. government is not making the world any safer. It’s making the world more dangerous. It is estimated that the U.S. military drops a bomb somewhere in the world every 12 minutes. Since 9/11, the United States government has directly contributed to the deaths of around 500,000. Every one of those deaths was paid for with taxpayer funds.

Those who call the shots in the government—those who push the military industrial complex’s agenda—those who make a killing by embroiling the U.S. in foreign wars—have not heeded Johnson’s warning.

The U.S. government is not making American citizens any safer. The repercussions of America’s military empire have been deadly, not only for those innocent men, women and children killed by drone strikes abroad but also those here in the United States.

All of this carnage is being carried out with the full support of the American people, or at least with the proxy that is our taxpayer dollars.

The government is destabilizing the economy, destroying the national infrastructure through neglect and a lack of resources, and turning taxpayer dollars into blood money with its endless wars, drone strikes and mounting death tolls.

As Martin Luther King Jr. recognized, under a military empire, war and its profiteering will always take precedence over the people’s basic human needs.

Similarly, President Dwight Eisenhower warned us not to let the profit-driven war machine endanger our liberties or democratic processes.

“Every gun that is made, every warship launched, every rocket fired signifies, in the final sense, a theft from those who hunger and are not fed, those who are cold and are not clothed. This world in arms is not spending money alone. It is spending the sweat of its laborers, the genius of its scientists, the hopes of its children. The cost of one modern heavy bomber is this: a modern brick school in more than 30 cities. It is two electric power plants, each serving a town of 60,000 population. It is two fine, fully equipped hospitals. It is some fifty miles of concrete pavement. We pay for a single fighter plane with a half million bushels of wheat. We pay for a single destroyer with new homes that could have housed more than 8,000 people. This is, I repeat, the best way of life to be found on the road the world has been taking. This is not a way of life at all, in any true sense. Under the cloud of threatening war, it is humanity hanging from a cross of iron. […] Is there no other way the world may live?”

We failed to heed Eisenhower’s warning.

The illicit merger of the armaments industry and the government that Eisenhower warned against has come to represent perhaps the greatest threat to the nation today.

As long as “we the people” continue to allow the government to wage its costly, meaningless, endless wars abroad, the American homeland will continue to suffer: our roads will crumble, our bridges will fail, our schools will fall into disrepair, our drinking water will become undrinkable, our communities will destabilize, our economy will tank, crime will rise, and our freedoms will suffer.

So who will save us?

As I make clear in my book, Battlefield America: The War on the American People, we’d better start saving ourselves: one by one, neighbor to neighbor, through grassroots endeavors, by pushing back against the police state where it most counts—in our communities first and foremost, and by holding fast to what binds us together and not allowing politics and other manufactured nonrealities to tear us apart.

Start today. Start now. Do your part.

Literally and figuratively, the buck starts and stops with “we the people.”

]]>The Relevance of the Preamble to Constitutional Interpretationhttps://tenthamendmentcenter.com/2019/03/11/the-relevance-of-the-preamble-to-constitutional-interpretation/ Mon, 11 Mar 2019 11:34:32 +0000http://tenthamendmentcenter.com/?p=28314The preamble to the United States Constitution is something that is widely employed within political and theoretical arguments but is virtually never relied upon in court cases interpreting the Constitution. Is this treatment correct under the Constitution’s original meaning? The preamble provides that “We the People of the United States, in Order to form a […]]]>

The preamble to the United States Constitution is something that is widely employed within political and theoretical arguments but is virtually never relied upon in court cases interpreting the Constitution. Is this treatment correct under the Constitution’s original meaning?

The preamble provides that “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

This stirring language is well known by the public but has rarely been used in constitutional argument. Its main use is to support popular sovereignty (“We the People”) and to support the claim that the people of the nation rather than the states are sovereign (“We the People of the United States”). Some people challenge this practice, while others defend it. I defend something of a middle position.

There are three main positions one can have about the preamble:

The preamble is a source of power for the national government. Under this view, Congress has the power to, for example, promote the general welfare and to insure domestic tranquility. The enumerated powers are thus supplemented by the preamble.

The preamble is simply symbolic language that has no function. It is philosophical language that states the purpose of the Constitution, but it should not be used when interpreting the Constitution. This position seems in practice to be the one that the courts employ since they almost never refer to the preamble when interpreting the Constitution.

The preamble has a significant, but limited function. It states the purposes of the Constitution and therefore should be used to resolve ambiguity in constitutional provisions, but not as an independent source of power.

In my view, this last position is the correct one. At the time of the Constitution, preambles to statutes were understood to have this function. They were not independent sources of power but could be employed to resolve ambiguity. They have the same function within the Constitution and should be employed in that manner.

My position suggests that Congress is limited to the enumerated powers. But that when we interpret those powers, we can use the preamble to discover the purposes of the Constitution and therefore to resolve ambiguities within the constitutional language by reference to those purposes.

Under this view, then, one might expect frequent reference to the preamble in constitutional interpretation. Yet, one rarely sees this, even in originalist writings. This might seem to be problematic, but there is a possible justification for this failure to reference the preamble. It is not often that the preamble will actually help resolve an interpretive uncertainty.

For example, the purpose of promoting a more perfect union does not tell us how far towards union one ought to move. It is simply a more secure and greater union than the Articles of Confederation provided. Similarly, the term “general welfare” is often unhelpful, because it too requires interpretation to know what the general welfare is.

One can imagine situations where the preamble helps. For example, one might argue that state sovereign immunity would work an injustice to someone who is owed money by the state. Thus, Justice Wilson in Chisholm v. Georgia properly invoked the establish justice language when interpreting Article III in a case involving a contract claim against Georgia. So sometimes the preamble is applicable, even though it is rarely invoked.

NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission.

]]>Term Limits Are Not the Answerhttps://tenthamendmentcenter.com/2019/03/09/term-limits-are-not-the-answer/ Sat, 09 Mar 2019 12:32:28 +0000http://tenthamendmentcenter.com/?p=28309Having new statists and socialists in Congress because the old statists and socialists had to leave because of term limits will not change anything.]]>

Franklin D. Roosevelt has the distinction of being the only man to be elected to the office of the presidency four times (1932, 1936, 1940, and 1944). The nation’s first president, George Washington, after serving two terms as president (1789–1797), famously declined to seek a third term as president. (If he had done so, and won, he would have died in office like Roosevelt, for Washington died in December 1799.)

In a July 21, 1799, letter of Washington to Jonathan Trumbull, he expressed his “ardent wishes to pass through the vale of life in retirement, undisturbed in the remnant of the days” he had “to sojourn here.” “Prudence on my part,” he wrote, “must arrest any attempt of the well-meant, but mistaken views of my friends, to introduce me again into the Chair of Government.”

Washington’s actions notwithstanding, it was actually the nation’s third president, Thomas Jefferson, who strongly endorsed the policy of term limits for the U.S. president.

Two years after Roosevelt died in office — only 82 days after his fourth inauguration as president — the Republican-controlled Congress proposed an amendment to the Constitution on March 24, 1947, that would restrict the presidency to two terms:

Section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

Section 2. This Article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several states within seven years from the date of its submission to the states by the Congress.

Almost four years later, after Congress sent it to the states for consideration, the Twenty-Second Amendment, having been ratified by the requisite number of states on February 27, 1951, was added to the Constitution.

Since that time, and especially since the founding of U.S. Term Limits (USTL) in 1992, calls for imposing term limits on Congress have intensified. USTL maintains that it “stands up against government malpractice,” that it is “the voice of the American citizen,” and that it wants “a government of the people, by the people, and for the people — not a ruling class who care more about deals to benefit themselves, than their constituents.” USTL “advocates for term limits at all levels of government.”

Since its founding, the organization has “assisted in enacting and defending term limits on state legislatures in 15 states as well as congressional term limits in 23 states.” However, in the Supreme Court case of U.S. Term Limits, Inc. v. Thornton (1994), the Court ruled, by a vote of 5-4, that “the Constitution prohibits States from adopting Congressional qualifications in addition to those enumerated in the Constitution.”

It would take an amendment to the Constitution to override the Supreme Court.

And that is just the route that some members of Congress want to take. Sen. Ted Cruz (R-Tex.) and Rep. Francis Rooney (R-Fla.) recently proposed a constitutional amendment that would impose term limits on members of both houses of Congress. It reads in part,

No person who has served 3 terms as a Representative shall be eligible for election to the House of Representatives.

No person who has served 2 terms as a Senator shall be eligible for election or appointment to the Senate.

“For too long, members of Congress have abused their power and ignored the will of the American people,” said Cruz. “Term limits on members of Congress offer a solution to the brokenness we see in Washington, D.C. It is long past time for Congress to hold itself accountable. I urge my colleagues to submit this constitutional amendment to the states for speedy ratification.”

Naturally, USTL supports the proposed amendment. The organization has even proclaimed February 27 to be National Term Limits Day. “Presidential term limits have been a big success and remain broadly popular with the public,” says U.S. Term Limits Executive Director Nick Tomboulides. “It is time to celebrate this great reform as we work to expand it to more offices, especially Congress!”

Two comments are in order.

One, we actually already have term limits: they are called elections. Voters can limit any politician to just one term in office if they so choose. It is a myth that powerful, long-serving politicians can never be voted out of office. High-profile Democrats and Republicans have lost elections, including primary elections. Consider the cases of Democrats Dan Rostenkowski. Tom Daschle, and Tom Foley, and Republicans George H.W. Bush and Eric Cantor.

Rostenkowski was a U.S. Representative from Illinois from 1959 to 1995. He was the Chairman of the House Ways and Means Committee. Yet he was defeated in the general election of 1994.

Daschle was a U.S. Senator from South Dakota from 1987 to 2005. He was the Senate Majority Leader. Yet he was defeated in the general election of 2004.

Foley was a U.S. Representative from Washington from 1964 to 1995. He was the Speaker of the House of Representatives from 1989 to 1995. Yet he was defeated in the general election of 1994.

Bush was the 41st president of the United States. Yet he was defeated in the general election of 1992 by Bill Clinton.

Cantor was a U.S. Representative from Virginia from 2001 to 2014. He was the House Majority Leader. Yet he was defeated in a primary election in 2014.

According to USTL, a 2018 poll by McLaughlin & Associates found that “congressional term limits have 82 percent support from the American people.” But if Americans want term limits so bad, then why is the reelection rate of congressional incumbents so high? And if Congress’s approval rating is so low, then why do Americans keep voting for the same people for Congress? There seems to be a strange disconnect between poll responses and actions at election time. But regardless of how Americans vote, the Cruz and Rooney bill prohibits Americans from voting for the candidate of their choice. How democratic is that?

Two, and most important, it is not term limits that Congress needs. The national debt now exceeds $22 trillion. The federal budget now exceeds $4 trillion a year. And according to economist Walter Williams of George Mason University,

Tragically, two-thirds to three-quarters of the federal budget can be described as Congress taking the rightful earnings of one American to give to another American — using one American to serve another. Such acts include farm subsidies, business bailouts, Social Security, Medicare, Medicaid, food stamps, welfare, and many other programs.

That would not be the case if members of Congress simply followed the Constitution they swore to uphold.

Is the Small Business Administration (SBA) constitutional? Of course not.

Is the Department of Education constitutional? Of course not.

Are subsidies for art and culture constitutional? Of course not.

How many new members of Congress who were elected to office last November campaigned on ending the drug war or food stamps or farm subsidies or Medicaid or Medicaid or Social Security or TANF or the SBA or the Department of Education or art and culture subsidies? Not one, of course. Having new statists and socialists in Congress because the old statists and socialists had to leave because of term limits will not change anything.

Term limits are not the answer to the country’s woes. Binding members of Congress — in the words of Thomas Jefferson — “from mischief by the chains of the Constitution” is a much better solution.

]]>How Thomas Jefferson Handled the National Debthttps://tenthamendmentcenter.com/2019/03/07/how-thomas-jefferson-handled-the-national-debt/ Thu, 07 Mar 2019 10:55:35 +0000http://tenthamendmentcenter.com/?p=28285The way Pres. Thomas Jefferson handled the national debt should be a blueprint for all modern presidents. When Donald Trump took office in January 2017, he inherited $19.95 trillion federal debt. And in just its first two years, the Trump administration and the Republican-controlled Congress added another $2.06 trillion to that total. But this isn’t just […]]]>

The way Pres. Thomas Jefferson handled the national debt should be a blueprint for all modern presidents.

When Donald Trump took office in January 2017, he inherited $19.95 trillion federal debt. And in just its first two years, the Trump administration and the Republican-controlled Congress added another $2.06 trillion to that total.

But there was a time when some presidents took paying off Uncle Sam’s debts seriously. For instance, Thomas Jefferson faced a huge national debt when he took office in 1800. But unlike his modern counterparts, he didn’t grow it further. In fact, he significantly whittled down the debt. Jefferson and his fellow Democrat-Republicans in Congress knocked about $26 million ($420,8 million in 2018 dollars) off the debt through his two terms in office — this despite taking on an additional $13 million of added debt for the Louisiana Purchase.

How did they do it?

Well, it was pretty simple. They cut spending and applied the savings to pay down debt.

“I am for a government rigorously frugal and simple, applying all the possible savings of the public revenue to the discharge of the national debt and not for a multiplication of officers & salaries merely to make partizans, & for increasing, by every device, the public debt, on the principle of it’s being a public blessing.”

Despite facing a number of contingencies, Jefferson limited federal spending, keeping total outlays flat at between $8 and $10 million throughout his presidency.

The Democrat-Republicans held costs down by cutting the federal bureaucracy. And they even managed to do this with a federal workforce totaling just 130 employees.

There wasn’t a whole lot of fat to slice, so Jefferson went to part of the budget where the money was being spent – the military. He argued that funding a standing army in peacetime was a colossal waste of money. In his first message to Congress, Jefferson wrote:

“Sound principles will not justify our taxing the industry of our fellow citizens to accumulate treasure for wars to happen we know not when, and which might not perhaps happen but from the temptations offered by that treasure.”

Congress responded to Jefferson’s message, reducing the army to 3,000 soldiers and 172 officers. It also cut the navy to six frigates and reduced the number of foreign embassies to only three — in Britain, France, and Spain.

All of these spending cuts freed up about $7 million in revenue annually. Secretary of Treasury Albert Gallatin used the surplus to pay down the debt.

At the same time, Congress even reduced taxes, eliminating the hated whiskey tax, along with other internal taxes.

During Jefferson’s tenure, the federal debt fell from $83 million in 1801 to $57 million in 1809. As Chris Edwards at the Cato Institute noted, the drop in debt was impressive, especially considering that the government swallowed that $13 million of added debt from the Louisiana Purchase.

Jefferson was also the beneficiary of a growing economy. After falling in the first two years of his first term, primarily due to the tax cuts, federal revenues soared to nearly $17 million by the end of his presidency. This was largely a function of a huge increase in import duties. Instead of using growing revenue to increase the size and scope of the federal government, Jefferson and Gallatin applied the surplus to pay down the debt.

“A rigid economy of the public contributions and absolute interdiction of all useless expenses will go far towards keeping the government honest and unoppressive.”

]]>Federal Vaccine Mandates: A Slippery Slope That Violates Informed Consent and State Sovereigntyhttps://tenthamendmentcenter.com/2019/03/06/federal-vaccine-mandates-a-slippery-slope-that-violates-informed-consent-and-state-sovereignty/ Wed, 06 Mar 2019 10:37:23 +0000http://tenthamendmentcenter.com/?p=28304There is a strong move afoot to impose federal vaccination mandates. This is a slippery slope that would violate both the principle of informed consent and state sovereignty. On February 19, CNN interviewed U.S. Food and Drug Administration (FDA) Commissioner Dr. Scott Gottlieb, who is now stepping down from the agency. However, if his comments […]]]>

There is a strong move afoot to impose federal vaccination mandates. This is a slippery slope that would violate both the principle of informed consent and state sovereignty.

On February 19, CNN interviewed U.S. Food and Drug Administration (FDA) Commissioner Dr. Scott Gottlieb, who is now stepping down from the agency. However, if his comments are more than the view of a single individual, every American should still be alarmed by them, which indicate that the agency has been considering a federal vaccine mandate. According to CNN, Gottlieb stated that “if states don’t require more schoolchildren to get vaccinated, the federal government might have to step in.” [1] He also reportedly said, “You could mandate certain rules about what is and isn’t permissible when it comes to allowing people to have exemptions.”

If the federal government mandates vaccines for children, mandates for adults will likely follow. Mandates are expected to be based upon the Centers for Disease Control and Prevention (CDC) childhood and adult vaccine schedules which, as discussed below, are rapidly expanding and adding additional vaccines and doses. Such federal mandates will be a dangerous usurpation of both individual liberty and state sovereignty.

Forced Vaccination Violates Informed Consent

Vaccination is a medical intervention that carries the risk of injury or death. Further, vaccine mandates are in direct opposition to informed consent.

According to the National Vaccine Information Center, “Informed consent has been the central ethical principle of the practice of modern medicine since the Nuremberg Code was issued by the Nuremberg Tribunal after World War II. Although the Nuremberg Code specifically addressed the human right for human beings to give their voluntary informed consent to participate in scientific experiments, the First Principle of the Nuremberg Code has become an ethical standard for allowing patients to give their voluntary consent to engage in medical interventions that carry a risk of harm.” [2] The Nuremberg Code was introduced in 1947 after the Nuremberg trials, in which Nazi doctors were convicted of crimes for conducting human experiments on concentration camp prisoners without the prisoners’ consent.

On the state level, mandatory vaccine laws generally apply to children with regard to school attendance, but most states allow exemptions based upon medical, philosophical and/or religious grounds. Although there have been legislative efforts in some states to reduce or eliminate exemptions, these have been defeated in many cases. By having this issue determined at the local or state level, rather than the federal level, individuals affected by the mandates have a greater chance to have their voices heard.

Number of Recommended Vaccines Steadily Rise Since Removal of Liability

Most Americans are unaware that, unlike with other products, the pharmaceutical industry is generally shielded from liability for harm caused by federally recommended vaccines.

This is the result of a law passed in 1986, which has caused vaccines to be the most lucrative product of the pharmaceutical industry. The 1986 law created the National Vaccine Injury Compensation Program (VICP), which is essentially a special system outside of the normal litigation process to hear claims of harm caused by vaccines. Any compensation granted by the VICP is paid by the public, through a surcharge on vaccines, and not by vaccine manufacturers.

Further, although discovery is a right afforded to litigants in most other legal forums, discovery is generally not permitted in the VICP process. By being deprived of the right to conduct discovery, complainants are unable to unearth potentially damaging evidence concerning vaccines in the possession of the pharmaceutical industry. Through discovery in other forums, in cases concerning prescription medication, information unfavorable to the pharmaceutical industry has come to light. This includes damaging e-mails which were required to be produced in litigation concerning the drug Vioxx. [3]

In the absence of the pharmaceutical industry’s liability for most vaccines, the number of vaccines recommended by it and the CDC is steadily rising. For example, in 1983, the CDC recommended that children receive 23 doses of seven vaccines. By 2017, the number of vaccines it was recommending rose to 69 doses of 16 vaccines starting on the day of birth to age 18, with 50 doses of 14 vaccines given before age 6. [4] A CDC adult vaccine schedule has also existed since 2002. [5] Like with the childhood schedule, the number of recommended vaccines and doses on the adult schedule has continued to rise.

Once the CDC’s vaccine schedules are mandated by federal law, Americans will continue to be subject to them even as more vaccines and doses are added, in a dangerous slippery slope.

Additionally, federal vaccine mandates may open the door to federal mandates for other medical treatments and procedures without informed consent. This may, for example, include the federal government mandating that children demonstrating social or emotional problems in the schools be forced to submit to a mental health evaluation by a government approved provider and to whatever psychiatric drugs are recommended by the provider, without the child’s or parents’ consent. The precedent set by federal vaccine mandates will set the stage for further expansion of federal control over individuals’ medical decisions.

The Safety and Effectiveness of Vaccines Is Not Settled Science

The pharmaceutical industry and proponents of forced vaccines argue that settled science has established that vaccines are safe, necessary and effective and, in an attempt to discredit those opposed to vaccine mandates, label them as anti-science. The media, which is largely dependent upon revenue from the pharmaceutical industry, almost unanimously parrots this view.

In fact, a voluminous amount of scientific information exists which indicates that vaccines are not safe, highly effective nor necessary. Furthermore, the most widely followed proponents of vaccine choice rely heavily upon scientific evidence in discussing the risks of vaccines and in questioning their effectiveness and necessity. Some of these sources of information include the following:

Robert F. Kennedy, Jr. serves as Chairman of Children’s Health Defense and its website contains extensive information concerning the potential dangers of vaccines. Further, sections of the website are specifically devoted to federal government failures in the area of vaccine safety (entitled “Federal Failures” and “Government Corruption”). [10]

The information found on this website includes detailed discussions about toxic ingredients in many vaccines and the cumulative effect of exposure to these toxins by the numerous doses required by the CDC’s schedules. Although the ingredients in each vaccine differ, some of the concerning ingredients found in them include aluminum, antibiotics, formaldehyde, Polysorbate 80, bovine extract, egg protein, monosodium glutamate (MSG), squalene, and/or aborted human fetal tissue. [11]

Del Bigtree is the founder of the Informed Consent Action Network (ICAN) and hosts the podcast The HighWire with Del Bigtree. ICAN’s website also contains a large body of scientific information indicating the potential dangers of vaccines and discusses the lack of scientific evidence establishing that they are safe and necessary. ICAN has brought suit against federal agencies in connection with vaccine safety. For example, it sued the FDA requesting any clinical trials relied upon by it prior to approving the currently licensed influenza or Tdap vaccine for use in pregnant women. ICAN settled the suit after the FDA admitted that it did not possess the requested data. [12]

The book Miller’s Review of Critical Vaccine Studies: 400 Important Scientific Papers Summarized for Parents and Researchers by Neil Z. Miller discusses over 400 peer-reviewed scientific studies raising concerns about vaccine safety and efficacy. [13] In Vaccines – A Reappraisal, Dr. Richard Moskowitz discusses surprising facts concerning vaccine safety testing, including that vaccines are generally tested without a control group of untreated (unvaccinated) individuals for comparison and that monitoring for adverse reactions generally occurs for a very short period of time, often of fourteen days or less. He also points to epidemiological research which indicates that vaccines may interfere with the normal development of a healthy immune system, discusses research indicating the surprisingly low effectiveness rates of many vaccines and conducts a painstaking review of specific vaccines, detailing their types and ingredients and presenting scientific evidence of harm caused by them. This includes information of brain injury, seizure disorders, autoimmune disorders and many other serious health consequences. [14] J.B. Handley’s book How to End the Autism Epidemic discusses the latest scientific information concerning potential harm caused by vaccines, particularly focusing on aluminum, a toxic metal used as an adjuvant in many vaccines, and focusing on evidence of a causal link between vaccines and autism. [15] In Dissolving Illusions – Disease, Vaccines, and the Forgotten History, Dr. Suzanne Humphries, a board-certified nephrologist, and Roman Bystrianyk, provide evidence that much of what we have been told about vaccines and their role in the decline in mortality from infectious disease in developed nations is untrue. They argue, using the historical record, that most of that decline occurred due to advances in nutrition, hygiene, sanitation and access to clean water. [16]

States Must Resist Federal Vaccine Mandates.

As we have seen with marijuana and industrial hemp, federal regulation becomes ineffective when states enact contradictory policies. If multiple states ban mandatory vaccinations or pass laws which conflict with the CDC’s recommended schedules, it will become extremely difficult for the federal government to enforce any kind of future federal mandates. Such state laws will also undermine the federal narrative and make it more difficult for the feds to generate support for nationwide mandatory vaccine policies.

]]>Today in History: The General Government Inaugurated Under the Constitutionhttps://tenthamendmentcenter.com/2019/03/04/today-in-history-the-general-government-inaugurated-under-the-constitution/ Mon, 04 Mar 2019 08:04:55 +0000http://tenthamendmentcenter.com/?p=28297Today in history, on March 4th, 1789, the general government under the United States Constitution went into effect. The occasion represented the end of a bitter ratification struggle that involved every corner of the fledgling states, and the beginning of a new constitutional order. In lieu of the Confederation system, Congress now consisted of two […]]]>

Today in history, on March 4th, 1789, the general government under the United States Constitution went into effect. The occasion represented the end of a bitter ratification struggle that involved every corner of the fledgling states, and the beginning of a new constitutional order.

In lieu of the Confederation system, Congress now consisted of two houses, one of which was apportioned by state population, with the other comprised of two delegates from each state.

For the first time, a federal judiciary was instituted to adjudicate several types of cases, all of which were strictly defined.

In addition, the new Constitution established an executive department headed by a president of the United States, armed with the ability to enforce the law, establish foreign relations, and execute wars once declared.

Although ratification was an uphill battle, various conditions created an environment allowing a new constitutional order to come to fruition.

Throughout the 1780s, domestic troubles consumed the republican system under the Articles of Confederation. First, the lack of a true taxing power caused acute financial instability. The requisition system, which Congress utilized instead, quickly became untenable as states underpaid their requested sums, or failed to pay at all.

In addition, the lack of any law enforcement apparatus meant the states had to carry out Congressional resolutions – an inconsistent prospect at best. Congress – the general agent of the states under the Articles – was largely impotent to carry out policy, even though such policies were formulated and aligned upon by the delegates of the states comprising it.

Some believed the young states would be unable to effectively deal with insurrections that threatened their republican governments, and for many, the outbreak of Shay’s Rebellion in 1786 solidified such a position.

Lastly, the inability to amend the framework of the Articles, short of rallying all 13 states to agreement, was a cumbersome barrier that prevented substantive reforms and constitutional improvements. By 1787, even those could never be considered nationalists began to identify and articulate defects in the Articles.

Nonetheless, not everyone was ready for radical political centralization. Several previous attempts at political reform, including Alexander Hamilton’s Annapolis Convention of 1786, had failed to enact tangible alterations of the framework. The next year, however, 12 states agreed to send delegates to Philadelphia in May to discuss amendments to the Articles.

That summer, several government models were proposed at Independence Hall. The New Jersey Plan, primarily the masterwork of William Paterson, emulated many aspects of the current system with slight alterations, such as an executive branch where power would be split between multiple individuals.

Hamilton – ever the arch-nationalist – proposed a quasi-monarchial system where the executive would be an elected monarch that served for life, where the states would be consolidated into a singular political entity, giving an absolute veto power for the executive over any law, and where state governors would be appointed by the central government.

The most famous of all plans proposed was the Virginia Plan, concocted in earnest by James Madison and Edmund Randolph. Their scheme called for a bicameral legislature with two houses based on state population, a general legislative authority rather than power to legislative on specific objects only, an executive to be appointed by the national legislature, a judiciary with the power to take up any case of perceived importance, and Madison’s most prized recommendation – a federal veto over state laws.

However, the Philadelphia Convention disposed of almost every nationalist element of the Virginia Plan. Instead of two houses based on state population apportionment, the upper house would be equally appointed by each state and have more power over appointments and treaties.

Rather than general legislative authority, much like that which existed in Great Britain, the Philadelphia Convention arrived upon the enumerated powers doctrine – where all powers not expressly listed in the document would be retained by the states.

Instead of a powerful central judiciary, the resultant framework provided for a less powerful judicial system where courts only had authority to rule on certain specified cases, and where Congress could even eliminate all inferior courts. Madison’s cherished veto power was deliberately voted down, much to his chagrin.

By the end of the convention, Hamilton confessed that “no man’s ideas were more remote from the plan than his,” signing the document with reluctance. Madison adopted a similar temperament, admitting to Thomas Jefferson that the new constitutional plan would likely be too weak to survive the doldrums befalling the newly independent republic, its superiority to the old system notwithstanding.

Despite their tepid outlooks, both men devoted themselves to the campaign for ratification nonetheless.

At the state ratification conventions, those that advocated for the new constitutional framework guaranteed that the document was one of enumerated powers, where the omission of an explicit power to do something meant doing it would be a legally impermissible usurpation. This principle was unambiguously reiterated through the ratification of the Tenth Amendment in 1791.

While most narratives articulate that the Constitution represented a marked shift to political centralization, in reality, the decentralized orientation of the union – where states held most political power – was wholly retained.

Although some new powers were added, such as the ability to levy taxes, suppression insurrections and rebellions, and the power regulate trade between states and foreign nations, other powers were curtailed or taken away.

For instance, the printing of paper bills of credit – inflationary currencies embraced both by the states and Congress in the 1770s and 1780s – was strictly prohibited under the new system, but existed under the Articles.

Above all else, the federal orientation of the union – and its underlying emphasis on federalism – should remain the most defining element of the existing constitutional order.

This maxim is reflected in the ratification mechanism found in Article VII – where the consent of nine states, as the creators of the new system, was necessary to bring life to the creation, the Constitution and the general government by extension. Despite the erosion of this maxim, the states retain their primacy in the annals of historical truth.

While the federal government has assumed much additional authority and embarked upon many constitutional transgressions since this day in 1789, the Constitution intended to produce a “more perfect union” of states rather than christen a central, homogenized American nation.

]]>The Birth of Confidence: The New Constitutionhttps://tenthamendmentcenter.com/2019/03/03/the-birth-of-confidence-the-new-constitution/ Sun, 03 Mar 2019 23:30:21 +0000http://tenthamendmentcenter.com/?p=28300On March 4, 2019, we commemorate the inauguration of the most transcendent legal document ever written: the Constitution of the United States of America. The thirteen colonies fought off the English and became sovereign states. Thirteen years after 1776, and thousands of discussions over back fences and in the public square, a new constitution was […]]]>

On March 4, 2019, we commemorate the inauguration of the most transcendent legal document ever written: the Constitution of the United States of America. The thirteen colonies fought off the English and became sovereign states.

Thirteen years after 1776, and thousands of discussions over back fences and in the public square, a new constitution was crafted. The date set for transition from the Articles of Confederation and Perpetual Union to the new constitution was March 4, 1789. That is the day that would mark the final step in the quest for independence — for liberty.

On that day, the new Congress convened in New York City and a month later the nation elected George Washington as its first President. The people were both excited and worried about their new government. What they wanted was confidence. And they wanted it badly. That was 230 years ago today.

Confidence is King

What every human being wants, perhaps more than any other single thing, is confidence. We want confidence:

that we will be kept from harm at the hands of robbers, thieves, and government,

that our homes and property will be protected,

that we will be free to own and enjoy the fruits of our minds and hands,

that our rights will not be infringed nor turned against our neighbors, and

that our nation will stand independent, strong, and sovereign among all nations.

As the new Constitution took hold on the nation, confidence soared. Disastrous inflation and civil turmoil gave way to unparalleled progress. Citizens bought land and machines, started new enterprises, hired new workers, and the nation began its ascent. Confidence transformed a few rebellious colonies into the most productive engine in the history of the world. But it wasn’t confidence alone, of course.

Confidence and Freedom: the Supreme Engine of Progress

The combination of freedom and confidence is the magic of our system of government. These two conditions release inventiveness, encourage investments of time and resources, reward success and discourage error. As we witness a decline in confidence we find a decline in freedom right along with it. Regulations, the bane of the colonies under King George III, have gradually overtaken us again. Politicians have quit their proper role as public servants, have disbanded the vision of our forefathers and made their own aggrandizement the focus of legislation. There are a few exceptions but they are exceptions.

The blood, sweat and tears exacted of our forefathers was for confidence. Protected rights give confidence in the midst of the freedom to do good or evil. That is the goal of good government — the golden mean between anarchy and tyranny. Our Constitution still does that.

Don’t Mess With the Machinery

“If it ain’t broke, don’t fix it,” was the byword of our progress and now the reason for our decline. The more we tamper with free enterprise, the less free it becomes, the less confidence it inspires and the less innovation and investment it produces. This isn’t rocket science. We must not let sophistry and a demeaning focus on error discourage or distract us from the simple power of confidence and freedom. We must remember that legislation is always restrictive. Here is what the founders would say to us today.

An Exhortation from Our Founders

“When the government was held within its proper bounds by the chains of the Constitution our nation was the fulfillment of the vision of liberty that dwelt in the hearts of freedom-loving people in every quarter of the globe. Will you now continue your course from such freedom back to oppression? Will you cast aside that instrument which has given greater liberty to the hearts and hands of more of the children of God than any combination of times and governments you may please to conceive? A supreme act of folly at best; and a fall into the pits of despotism at worst! Nay! Away with that!

When we gave you the Constitution, the nation had already come from under the hands of a tyrannical aristocracy into the light of liberty, and now drifts again into the clouds of oppression. Then listen together! Let the cry go up! Restore the Constitution! Restore the free exercise of the rights of the people! Reverse the drift! Put down again the anchor of liberty and fasten to it the ship of state by the chains of the Constitution! Let every man learn his duty and perform it with diligence!

Is there a cause more just, a goal more worthy, a need more dear, or a pastime more sweet than this; to bind up the wounds of the national charter, to reassert the natural rights of man, and to secure the blessings of liberty to yourselves and your posterity? You — my Sons of Liberty; ponder it in your hearts, speak of it in your gatherings, and pray for it in your secret chambers! Let the cry go forth throughout the land and echo across a world groaning and starving under the crush of tyrants: restore the rights of man!

Oh, hear the voice of your Fathers! Rise up my people and lift up your heads! Come out of darkness into the rightful day of your glory. Secure and cherish the liberty wherewith we made you free! You are free; for we declared you free and bought your liberty with our blood!” 1

1 A New Message, Words of Courage and Council from the Hearts of the Founding Fathers to Their Children in a Troubled Nation; III. On the Constitution

]]>National “Emergencies” and a Renewed Federal Gun Control Pushhttps://tenthamendmentcenter.com/2019/03/01/national-emergencies-and-a-renewed-federal-gun-control-push/ Fri, 01 Mar 2019 11:23:03 +0000http://tenthamendmentcenter.com/?p=28299Earlier this week, House Speaker Nancy Pelosi told a group of supporters and journalists that in her view, gun violence is the real emergency. Such a statement, in the context in which she made it, should send shivers down the spines of all who believe in personal liberty protected by the Constitution. Notwithstanding the terrifying […]]]>

Earlier this week, House Speaker Nancy Pelosi told a group of supporters and journalists that in her view, gun violence is the real emergency. Such a statement, in the context in which she made it, should send shivers down the spines of all who believe in personal liberty protected by the Constitution.

Notwithstanding the terrifying analogy she made about gun violence — terrifying to those who believe in the individual right to keep and bear arms as articulated by the Second Amendment and interpreted and upheld by the Supreme Court — Pelosi wasn’t really speaking about guns. She was speaking about the presidency and the Constitution.

Here is the back story.

When President Donald Trump finally signed legislation two weeks ago to keep the federal government financed and open — legislation substantially similar to bills he had declined to sign in late 2018 and again in early 2019, bills that declined to give him the $5.7 billion he requested to build a wall at the southern border of the United States — he also issued a proclamation declaring a national emergency at the southern border.

He based his emergency proclamation upon anecdotal evidence that more folks were attempting to enter the United States from Mexico than the Border Patrol and the southwestern states’ safety nets could accommodate and that many of these would-be migrants were “bad people.” He produced no evidence to back up his emergency claims. When 58 former high-ranking federal national security folks — including a former Democratic secretary of state and a former Republican secretary of defense — directly repudiated the president’s stated basis for his emergency, the White House did not even respond.

As well, weeks before he signed the emergency proclamation, President Trump repeatedly offered that the threat of it was just a negotiating technique aimed at bringing House Democrats to the White House for a sit-down. And as he was announcing the proclamation itself, he boasted that he “didn’t need to do this.”

Trump’s proclamation directed the departments of Defense and Homeland Security to divert unspent funds in their budgets — funds directed to be spent on specified items by legislation passed by Congress and signed by former President Barack Obama and by President Trump himself but not yet spent — to build a 55-mile stretch of what he says will be a 1,000-mile wall.

As I have written in this column and articulated on Fox News Channel, such executive action is unlawful, as it constitutes a presidential intrusion into an area of federal behavior — spending money — that the Constitution reposes exclusively in the Congress. In the famous Steel Seizure Case in 1952, when President Harry Truman ordered the employment of nonunion workers at government expense to run strike-closed steel mills after Congress declined to do so, the Supreme Court blocked him from doing just what President Trump is attempting to do — spending money in defiance of Congress.

A generation after the Supreme Court rebuked Truman — during the presidency of Gerald Ford — Congress did grant the president the power to declare emergencies, but these declarations cannot be contrary to the Constitution, and they cannot give the president more lawful authority than the Constitution gives him.

Though the 1976 statute interestingly fails to define just what constitutes a presidential emergency, the courts have concluded that it consists of the onset of a sudden and unanticipated event that demands government action to preserve life, liberty or property — an event the ordinary levers of governmental power are insufficient to address. But it does not — and constitutionally cannot — authorize the president to spend money that Congress has expressly declined to spend.

Now, back to Speaker Pelosi and her comment about guns. Her constitutional argument (and I agree with her, which rarely happens) is that not only may the president not spend contrary to congressional wishes but also he cannot claim that his own declaration of a national emergency gives him another source for presidential power — in this case, the ability to condemn private property and build a wall on it.

All presidential powers come only from the Constitution — and from no other source. Were that not the case, were a president able to characterize any state of affairs as an emergency and thereby give to himself the lawful power to address it extraconstitutionally, that would do irreparable violence to the Constitution and would effectively transform the president into a prince.

Under President Trump’s theory of emergency powers, a President Pelosi could declare that gun violence is an emergency and then confiscate handguns. Or a President Cory Booker could declare that health care is an emergency and then spend unauthorized funds purchasing health insurance for those who lack it. Or a President John Bolton could declare that North Korea and Iran pose emergency threats to Los Angeles and New York, respectively, and then bomb the threatening countries back into the Stone Age.

You can see the wisdom of Pelosi’s slippery-slope fear. If President Trump can get away with this, there will be no stopping his successors — no matter who they are.

The Constitution’s separation of powers — Congress writes the laws, the president enforces them, the judiciary says what they mean; Congress declares war, the president wages war, the judiciary interprets the legal effects of war on domestic law — was not established to fortify any of the three branches. It was crafted to keep each of those branches out of the business of the other two — and thereby limit the reach of each branch and thus keep federal power separated and diffused.

The Framers knew that separated and diffused federal power would reduce the near occasions for interfering with the personal liberty of everyone in America. That’s why it is integral to the Constitution.

]]>The Age of Tyrannical Surveillancehttps://tenthamendmentcenter.com/2019/02/27/the-age-of-tyrannical-surveillance/ Wed, 27 Feb 2019 12:54:11 +0000http://tenthamendmentcenter.com/?p=28282We’re Being Branded, Bought and Sold for Our Data]]>

Have you shopped at Whole Foods? Tested out target practice at a gun range? Sipped coffee at Starbucks while surfing the web? Visited an abortion clinic? Watched FOX News or MSNBC? Played Candy Crush on your phone? Walked through a mall? Walked past a government building?

Incredibly, once you’ve been identified and tracked, data brokers can travel back in time, digitally speaking, to discover where you’ve been, who you’ve been with, what you’ve been doing, and what you’ve been reading, viewing, buying, etc.

Once you’ve been identified in this way, you can be tracked endlessly.

In this regard, we are all equals: equally suffering the indignity of having every shred of privacy stripped away and the most intimate details of one’s life turned into fodder for marketers and data profiteers.

This creepy new era of government/corporate spying—in which we’re being listened to, watched, tracked, followed, mapped, bought, sold and targeted—makes the NSA’s surveillance appear almost antiquated in comparison.

What’s worse, this for-profit surveillance capitalism scheme is made possible with our cooperation.

All those disclaimers you scroll though without reading them, the ones written in minute font, only to quickly click on the “Agree” button at the end so you can get to the next step—downloading software, opening up a social media account, adding a new app to your phone or computer—those signify your written consent to having your activities monitored, recorded and shared.

Think about it.

Every move you make is being monitored, mined for data, crunched, and tabulated in order to form a picture of who you are, what makes you tick, and how best to influence and/or control you.

On any given day, the average American going about his daily business will be monitored, surveilled, spied on and tracked in more than 20 different ways by both government and corporate eyes and ears. A byproduct of this new age in which we live, whether you’re walking through a store, driving your car, checking email, or talking to friends and family on the phone, you can be sure that some government agency is listening in and tracking your behavior.

With every smartphone we buy, every GPS device we install, every Twitter, Facebook, and Google account we open, every frequent buyer card we use for purchases—whether at the grocer’s, the yogurt shop, the airlines or the department store—and every credit and debit card we use to pay for our transactions, we’re helping Corporate America build a dossier for its government counterparts on who we know, what we think, how we spend our money, and how we spend our time.

If anyone else stalked us in this way—tailing us wherever we go, tapping into our calls, reading our correspondence, ferreting out our secrets, profiling and targeting us based on our interests and activities—we’d call the cops.

Unfortunately, the cops (equipped with Stingray devices and other Peeping Tom technologies) are also in on this particular scam.

It’s not just the surveillance and the buying and selling of your data that is worrisome.

The ramifications of a government—any government—having this much unregulated, unaccountable power to target, track, round up and detain its citizens is beyond chilling.

Imagine what a totalitarian regime such as Nazi Germany could have done with this kind of unadulterated power.

Imagine what the next police state to follow in Germany’s footsteps will do with this kind of power. Society is definitely rapidly moving in that direction.

We’ve made it so easy for the government to watch us.

Government eyes see your every move: what you read, how much you spend, where you go, with whom you interact, when you wake up in the morning, what you’re watching on television and reading on the internet.

Every move you make is being monitored, mined for data, crunched, and tabulated in order to form a picture of who you are, what makes you tick, and how best to control you when and if it becomes necessary to bring you in line.

Yet whether or not you like or share this particular article, simply by reading it or any other articles related to government wrongdoing, surveillance, police misconduct or civil liberties is enough to get you categorized as a particular kind of person with particular kinds of interests that reflect a particular kind of mindset that mightjust lead you to engage in a particular kinds of activities. The corporate state must watch and keep tabs on you if it is to keep you in line.

Chances are, as the Washington Post has reported, you have already been assigned a color-coded threat assessment score—green, yellow or red—so police are forewarned about your potential inclination to be a troublemaker depending on whether you’ve had a career in the military, posted a comment perceived as threatening on Facebook, suffer from a particular medical condition, or know someone who knows someone who might have committed a crime.

In other words, you might already be flagged as potentially anti-government in a government database somewhere—Main Core, for example—that identifies and tracks individuals (so they can be rounded up and detained in times of distress) who aren’t inclined to march in lockstep to the police state’s dictates.

The government has the know-how.

As The Interceptreported, the FBI, CIA, NSA and other government agencies are increasingly investing in and relying on corporate surveillance technologies that can mine constitutionally protected speech on social media platforms such as Facebook, Twitter and Instagram in order to identify potential extremists and predict who might engage in future acts of anti-government behavior.

Get ready, because all signs point to China serving as the role model for our dystopian future.

When the government sees all and knows all and has an abundance of laws to render even the most seemingly upstanding citizen a criminal and lawbreaker, then the old adage that you’ve got nothing to worry about if you’ve got nothing to hide no longer applies.

Apart from the overt dangers posed by a government that feels justified and empowered to spy on its people and use its ever-expanding arsenal of weapons and technology to monitor and control them, there’s also the covert dangers associated with a government empowered to use these same technologies to influence behaviors en masse and control the populace.

It’s a short hop, skip and a jump from a behavioral program that tries to influence how people respond to paperwork to a government program that tries to shape the public’s views about other, more consequential matters.

Add pre-crime programs into the mix with government agencies and corporations working in tandem to determine who is a potential danger and spin a sticky spider-web of threat assessments, behavioral sensing warnings, flagged “words,” and “suspicious” activity reports using automated eyes and ears, social media, behavior sensing software, and citizen spies, and you having the makings for a perfect dystopian nightmare.

This is the kind of oppressive pre-crime and pre-thought crime package foreshadowed by George Orwell, Aldous Huxley and Phillip K. Dick.

Remember, even the most well-intentioned government law or program can be—and has been—perverted, corrupted and used to advance illegitimate purposes once profit and power are added to the equation.

The war on terror, the war on drugs, the war on illegal immigration, asset forfeiture schemes, road safety schemes, school safety schemes, eminent domain: all of these programs started out as legitimate responses to pressing concerns and have since become weapons of compliance and control in the police state’s hands.

In the right (or wrong) hands, benevolent plans can easily be put to malevolent purposes.

Surveillance, digital stalking and the data mining of the American people—weapons of compliance and control in the government’s hands, especially when the government can listen in on your phone calls, monitor your driving habits, track your movements, scrutinize your purchases and peer through the walls of your home—add up to a society in which there’s little room for indiscretions, imperfections, or acts of independence.

This is the creepy, calculating yet diabolical genius of the American police state: the very technology we hailed as revolutionary and liberating has become our prison, jailer, probation officer, Big Brother and Father Knows Best all rolled into one.

It turns out that we are Soylent Green.

The 1973 film of the same name, starring Charlton Heston and Edward G. Robinson, is set in 2022 in an overpopulated, polluted, starving New York City whose inhabitants depend on synthetic foods manufactured by the Soylent Corporation for survival.

Heston plays a policeman investigating a murder, who discovers the grisly truth about the primary ingredient in the wafer, soylent green, which is the principal source of nourishment for a starved population. “It’s people. Soylent Green is made out of people,” declares Heston’s character. “They’re making our food out of people. Next thing they’ll be breeding us like cattle for food.”

Oh, how right he was.

Soylent Green is indeed people or, in our case, Soylent Green is our own personal data, repossessed, repackaged and used by corporations and the government to entrap us.

As the insidious partnership between the U.S. government and Corporate America grows more invasive and more subtle with every passing day, there’s virtually no way to opt out of these assaults on your digital privacy short of being a modern-day Luddite, completely disconnected from all technology.

Indeed, George Orwell’s description of the world of 1984 is as apt a description of today’s world as I’ve ever seen: “You had to live—did live, from habit that became instinct—in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized.”

What we desperately lack and urgently need is an Electronic Bill of Rights that protects “we the people” from predatory surveillance and data-mining business practices.

Without constitutional protections in place to guard against encroachments on our rights in the electronic realm, it won’t be long before we find ourselves, much like Edward G. Robinson’s character in Soylent Green, looking back on the past with longing, back to an age where we could speak to whom we wanted, buy what we wanted, think what we wanted without those thoughts, words and activities being tracked, processed and stored by corporate giants such as Google, sold to government agencies such as the NSA and CIA, and used against us by militarized police with their army of futuristic technologies.

]]>Emergencies Do Not Trump the Constitutionhttps://tenthamendmentcenter.com/2019/02/25/emergencies-do-not-trump-the-constitution/ Mon, 25 Feb 2019 19:14:05 +0000http://tenthamendmentcenter.com/?p=28281Ron Paul: "President Trump’s emergency declaration is not just an end run around Congress. It is an end run around the Constitution."]]>

After Congress rejected President Trump’s request for 5.7 billion dollars for the border wall, the president declared a national emergency at the southern border. Present Trump claims this “emergency” gives him the authority to divert funds appropriated for other purposes to building the border wall.

President Trump’s emergency declaration is not just an end run around Congress. It is an end run around the Constitution. Article One of the Constitution gives Congress sole authority to allocate federal funds.

While President Trump’s order may be a particularly blatant abuse of power, it is hardly unprecedented. Most modern presidents have routinely used so-called national emergencies to expand their power, often at the expense of liberty. For example, Present Franklin Delano Roosevelt used “emergency powers” to justify internment of Japanese-Americans during World War Two.

President Trump, like other recent presidents, is relying on the 1976 National Emergencies Act for legal justification for his emergency declaration. This act gives the president broad powers to declare national emergencies for almost any reason. All the president need do is inform Congress he has declared an emergency. Once the emergency is declared, the president simply needs to renew the declaration once a year to maintain a state of emergency. Since this act passed, 59 emergency declarations have been issued, with 31 of those still in effect.

Another statute giving the president broad “emergency” powers is the Defense Production Act. Under this law, the president can force private businesses to produce goods for the military. The law also enables the president to impose wage and price controls and even make loans to private businesses. All a president need do to invoke these vast powers is submit “findings” to Congress that “national security” requires the president seize near-dictatorial control of certain industries or even the entire economy. According to the Congressional Research Service, some presidents have invoked the Defense Production Act without making the required findings to Congress, and the act has been used to justly federal interference in areas having little or nothing to do with national defense.

Section 606(c) of the Communications Act gives the president “emergency” power to seize control of every television network, radio station, smartphone, laptop, and other electronic devices.

Emergency powers are not the only means by which presidents violate the Constitution. The 2001 authorization for use of military force (AUMF), which only authorizes the president to use force against those responsible for the September 11 attacks, has been used to justify military interventions that have no relationship to those attacks. The 2001 AUMF has been used to justify mass surveillance, indefinite detention, and even “kill lists.” Fortunately, Representative John Garamendi has introduced the Walter B. Jones Restoring Power to Congress Act that would pay tribute to a true champion of peace by repealing the 2001 AUMF.

Many neoconservatives and progressives who defended prior presidents’ abuses of power are critical of President Trump’s emergency declaration. These “never-Trumpers” will no doubt resume their love affair with the imperial presidency when the Oval Office is again occupied by someone who shares their agenda.

This week, the House of Representatives will vote on a resolution terminating President Trump’s declaration of a national emergency. Hopefully, this precedent will be used against all future presidents who use spurious claims of national emergencies to expand their powers and shrink our liberties.

]]>Gun Grabbers Admit Feds Can’t Enforce Laws Without State and Local Supporthttps://tenthamendmentcenter.com/2019/02/22/gun-grabbers-admit-feds-cant-enforce-laws-without-state-and-local-support/ Fri, 22 Feb 2019 12:17:59 +0000http://tenthamendmentcenter.com/?p=28276The federal government needs state and local support to enforce gun laws and the anti-gun lobby knows it. On February 12, around 450 supporters of the Missouri chapter of Moms Demand Action for Gun Sense in America descended on the state capitol to lobby for passage of a state bill that would bar anybody convicted of […]]]>

The federal government needs state and local support to enforce gun laws and the anti-gun lobby knows it.

On February 12, around 450 supporters of the Missouri chapter of Moms Demand Action for Gun Sense in America descended on the state capitol to lobby for passage of a state bill that would bar anybody convicted of domestic violence from owning or possessing a firearm.

Rep. Tracy McCreery (D-St. Louis) sponsored House Bill 960 (HB960). Under the proposed law, any person convicted of domestic assault or stalking would be barred from owning a firearm. According to supporters of the bill, the ban would be permanent.

Additionally, courts that issue a protection order for domestic violence would also prohibit the respondent from knowingly possessing or purchasing any firearm while the order is in effect. The Missouri Highway patrol would enforce the law.

Colleen Coble, CEO of the Missouri Coalition Against Domestic and Sexual Violence, noted that there is already a federal law on the books that prohibits people who have been convicted of domestic violence who have had a protective order issued against them from possessing a firearm.

So, if there is a federal law on the books, why are gun lobbyists pushing for a state law in Missouri?

Moms Demand Action wants legislators to know it is inefficient to have a federal law with no way for the local police officer, or prosecutor or judge to enforce the law, Coble said.

“I don’t know about you, but in my neighborhood, I don’t routinely see an (Alcohol, Tobacco, Firearms and Explosives) officer,” she said. “And that’s where we are. That’s what the process is now. You would have to find a federal ATF officer to make your report to — that you’re a victim of domestic violence and the person who hurt you still has a firearm.”

Moms Demand Action figured out a very important truth. Don’t miss it because it’s huge.

The feds need state and local personnel and resources to enforce their gun laws. They can’t do it alone. The federal government already has laws on the books that do exactly what Moms Demand Action want done. But it doesn’t matter, practically speaking. There exists no way to enforce it unless the state empowers its police to do the job.

This is exactly why James Madison said “a refusal to cooperate with officers of the Union,” would “present obstructions which the federal government would hardly be willing to encounter.”

Even the Supreme Court even supports this strategy. Refusal to participate in federal enforcement rests on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program. The doctrine is based primarily on five Supreme Court cases dating back to 1842. Printz v. U.S. serves as the cornerstone.

“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty”

In short, states and localities have a great deal of power. When they refuse to participate in the enforcement of federal programs, they can bring them to an end without relying on the federal government to limit itself.

]]>A Colonial Pamphlet Helps Show Why the Constitution’s Necessary and Proper Clause Granted No Powerhttps://tenthamendmentcenter.com/2019/02/20/a-colonial-pamphlet-helps-show-why-the-constitutions-necessary-and-proper-clause-granted-no-power/ Wed, 20 Feb 2019 17:29:41 +0000http://tenthamendmentcenter.com/?p=28272As I have noted before (for example, here and here) pamphlets written in support of the colonial cause during the years 1763-1774 help us greatly in understanding the language of the Constitution. Unfortunately, most constitutional writers regularly overlook those pamphlets—one reason mistakes of constitutional interpretation are so common. Most of the influential colonial pamphlets were written by distinguished […]]]>

As I have noted before (for example, here and here) pamphlets written in support of the colonial cause during the years 1763-1774 help us greatly in understanding the language of the Constitution. Unfortunately, most constitutional writers regularly overlook those pamphlets—one reason mistakes of constitutional interpretation are so common.

Most of the influential colonial pamphlets were written by distinguished lawyers. Among the authors were John Adams, Thomas Jefferson, Daniel Dulany, James Wilson, Alexander Hamilton, and John Dickinson. In these works, the authors explained the American vision of the rights of citizens and the prerogatives of the colonies within the British Empire.

The British ministry rejected that vision, which helped bring on the Revolutionary War. But after Independence Americans got the opportunity to write their own Constitution. They implanted much of the pamphleteers’ vision into our Basic Law—not surprisingly, since at least three of the Framers had been pamphleteers themselves (Wilson, Hamilton, Dickinson).

In addition to helping us understand the Founders’ view of government, the colonial pamphlets help us understand the meaning of particular words and phrases. They also illustrate the sources the Founders relied on for their ideas: the Bible, the Greco-Roman classics, English constitutional history, the history of the Netherlands, and so forth.

The pamphlet is a miracle of classical and historical learning. When Quincy composed it, he was only 30 years old, but was already one of Massachusetts’ top attorneys. Quincy was a leader of the colonial cause, and had served as John Adams’ co-counsel in the celebrated “Boston Massacre” case. His essay’s principal purposes are to show that the parliamentary act shutting up the port of Boston was unjust, and that peacetime standing armies are inimical to free government.

I encourage readers to examine the pamphlet themselves. If you have studied the Constitution, you will find much that foreshadows it.

One example is the precise Second Amendment phrase “well regulated militia” (page 39). Another is the word “commerce,” used specifically as a synonym for “trade” (page 22), and not with the expansive meanings claimed by apologists for the modern monster state.

Quincy assails the Boston Port Act’s invalidation of existing contracts as a “post facto” law (page 11), illustrating the contemporaneous opinion that ex post facto laws could be civil as well as criminal in nature (an interpretation abandoned during the Constitution’s ratification fight). Another passage foreshadows the Constitution’s guarantee of due process of law (page 14). Still another implies that in using the phrase “natural born” the understanding is the English use of that phrase, not the international law usage (page 69). Yet another passage reflects the underlying constitutional value of “sympathy” between government and governed (page 28).

In addition, the essay contains numerous adages and warnings on government, such as the cost of employing too many public officials (page 62).

Perhaps the most interesting part of the pamphlet illustrates why, as has been documented extensively, the Founders understood the Necessary and Proper Clause (Article I, Section 8, Clause 18) to be a mere recital, and not an affirmative grant of power to Congress. At that point, Quincy was discussing the Boston Port Bill’s requirement that the Town of Boston reimburse the East Indian Company for the tea tossed into the harbor. Quincy pointed out (page 18-19) that it would be illegal for Boston to pay the Company, because another Parliamentary statute limited Town expenses to “maintenance and support of the ministry, schools, the poor, and defraying other necessary Town Charges.”

“Will any now say,” Quincy wrote, “that the monies appointed to be paid to the East-India [Company], come within the words of ‘necessary town charges?’ When did the town contract the debt, or how are they subject to it?”

Today we might read “necessary town charges” as including such a payment, but that was not what it meant at the time. When a phrase like “and other necessary charges” appeared in a legal document at the end of in a list of enumerated powers, it served only to clarify that power-wielder had authority incidental to the powers already listed—but not separate and additional authority. Under this statute, in other words, the town of Boston could not make payments unrelated to the listed purposes.

This is precisely the role the Necessary and Proper Clause plays in Article I, Section 8.

Had he lived, Quincy undoubtedly would played an illustrious part in our nation’s founding. Unfortunately, he died of tuberculosus about a year after publishing this great tour de force—only 31 years old. His son was to become president of Harvard University, and his second cousin, John Quincy Adams, President of the United States.

]]>Plunder: An American Way of Lifehttps://tenthamendmentcenter.com/2019/02/18/plunder-an-american-way-of-life/ Tue, 19 Feb 2019 00:53:50 +0000http://tenthamendmentcenter.com/?p=28266Some argue that Congress gets its authority to bypass its enumerated powers from the general welfare clause.]]>

Frederic Bastiat, a French economist and member of the French National Assembly, lived from 1801 to 1850. He had great admiration for our country, except for our two faults — slavery and tariffs.

He said: “Look at the United States. There is no country in the world where the law is kept more within its proper domain: the protection of every person’s liberty and property.” If Bastiat were alive today, he would not have that same level of admiration. The U.S. has become what he fought against for most of his short life.

Bastiat observed that “when plunder becomes a way of life for a group of men in a society, over the course of time they create for themselves a legal system that authorizes it and a moral code that glorifies it.” You might ask, “What did Bastiat mean by ‘plunder’?”

Plunder is when someone forcibly takes the property of another. That’s private plunder. What he truly railed against was legalized plunder, and he told us how to identify it. He said: “See if the law takes from some persons what belongs to them, and gives it to other persons to whom it does not belong. See if the law benefits one citizen at the expense of another by doing what the citizen himself cannot do without committing a crime.”

That could describe today’s American laws. We enthusiastically demand that the U.S. Congress forcibly use one American to serve the purposes of another American. You say: “Williams, that’s insulting. It’s no less than saying that we Americans support a form of slavery!”

What then should we call it when two-thirds to three-quarters of a $4 trillion-plus federal budget can be described as Congress taking the property of one American and giving it to another to whom it does not belong? Where do you think Congress gets the billions upon billions of dollars for business and farmer handouts? What about the billions handed out for Medicare, Medicaid, food stamps, housing allowances and thousands of other handouts?

There’s no Santa Claus or tooth fairy giving Congress the money, and members of Congress are not spending their own money. The only way Congress can give one American $1 is to first take it from another American.

What if I privately took the property of one American to give to another American to help him out? I’m guessing and hoping you’d call it theft and seek to jail me. When Congress does the same thing, it’s still theft. The only difference is that it’s legalized theft. However, legality alone does not establish morality. Slavery was legal; was it moral? Nazi, Stalinist and Maoist purges were legal, but were they moral?

Some argue that Congress gets its authority to bypass its enumerated powers from the general welfare clause. There are a host of proofs that the Framers had no such intention.

James Madison, the “Father of the Constitution,” wrote, “If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the Government is no longer a limited one possessing enumerated powers, but an indefinite one.”

Thomas Jefferson wrote, “Our tenet ever was … that Congress had not unlimited powers to provide for the general welfare, but were restrained to those specifically enumerated.”

Rep. William Drayton of South Carolina asked in 1828, “If Congress can determine what constitutes the general welfare and can appropriate money for its advancement, where is the limitation to carrying into execution whatever can be effected by money?”

What about our nation’s future? Alexis de Tocqueville is said to have predicted, “The American republic will endure until the day Congress discovers that it can bribe the public with the public’s money.” We long ago began ignoring Bastiat’s warning when the federal government was just a tiny fraction of gross domestic product — 3 percent, as opposed to today’s 20 percent: “If you don’t take care, what begins by being an exception tends to become general, to multiply itself, and to develop into a veritable system.”

Moral Americans are increasingly confronted with Bastiat’s dilemma: “When law and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law.”

]]>Full Speed to a Fiscal Cliff: National Debt Hits $22 Trillionhttps://tenthamendmentcenter.com/2019/02/15/full-speed-to-a-fiscal-cliff-national-debt-hits-22-trillion/ Fri, 15 Feb 2019 09:52:47 +0000http://tenthamendmentcenter.com/?p=28263The national debt has pushed above the $22 trillion mark and is up $2.06 trillion since Donald Trump took office. According to Treasury Department data released Tuesday, the national debt now stands at $22.01 trillion. When President Trump took office in January 2017, the debt was at $19.95 trillion. And the pace of borrowing doesn’t show […]]]>

The national debt has pushed above the $22 trillion mark and is up $2.06 trillion since Donald Trump took office.

According to Treasury Department data released Tuesday, the national debt now stands at $22.01 trillion. When President Trump took office in January 2017, the debt was at $19.95 trillion.

And the pace of borrowing doesn’t show any signs of slowing down. The CBO projects that the 2019 budget deficit (government spending over revenue) will come in at $897 billion. That’s a 15.1% increase over the 2018 deficit of $779 billion. (If you’re wondering how the debt can grow by a larger number than the annual deficit, economist Mark Brandly explains here.)

According to the CBO, the deficit will hit $1 trillion by 2022 and remain at that level or higher through 2029. Keep in mind, the CBO tends toward conservative projections. As Peterson Foundation CEO Michael Peterson put it, the $22 trillion milestone is “the latest sign that our fiscal situation is not only unsustainable, but accelerating.”

Just consider the increasing amount of money necessary just to make interest payments on all of this debt. According to the Peterson Foundation, the federal government already pays out $1 billion every single day just servicing the interest on the debt. It will fork out a staggering $7 trillion in interest payments over the next decade.

Growing debt coupled with soaring interest payments creates a vicious upwardly spiraling cycle. As debt grows, it costs more money to service it. That requires more borrowing, which adds to the debt, which increases the interest payments — and on and on it goes.

This is an underlying reason that the Federal Reserve simply cannot continue raising interest rates. The increasing number of bonds on the market alone will naturally push yields (interest rates) higher as a function of supply and demand. That may well put the Fed into a position of once again having to become a buyer of US Treasuries. In other words, more quantitative easing. Interestingly, the Fed is considering using QE “more readily” in the future. Perhaps the central bankers realize that there is no way the U.S. government can continue this borrowing pace without the Fed monetizing the debt.

The Trump administration insists that its tax cuts will eventually pay for themselves by generating faster economic growth But as we have said repeatedly, high levels of debt retard economic growth. Several studies estimate that economic growth slows by about 30% when the debt to GDP ratio rises to about 90%. The CBO projects the US will hit 106% debt to GDP ratio in the next decade, but most analysts say the U.S. economy is already in the 105% range.

Trump supporters try to deflect blame away from the president, pointing out that Congress ultimately passes all spending bills. This doesn’t reflect very well on the Republicans who controlled both houses of Congress as the debt skyrocketed by over $2 trillion. And it doesn’t let the president off the hook. As Tenth Amendment Center founder and executive director Micheal Boldin pointed out, they are all responsible for the debt.

Nevertheless, politicians in D.C. seem utterly unconcerned about the skyrocketing debt. Trump didn’t even mention the debt during the State of the Union speech and few people on Capitol Hill have made the growing deficits an issue. Peterson said despite the apathy in D.C., we should be concerned about the skyrocketing debt.

Our growing national debt matters because it threatens the economic future of every American.”

]]>Ending State and Local Support for Torture and Renditionhttps://tenthamendmentcenter.com/2019/02/13/ending-state-and-local-support-for-torture-and-rendition/ Wed, 13 Feb 2019 10:57:20 +0000http://tenthamendmentcenter.com/?p=27668In late 2017, Testimony offered before the North Carolina Commission of Inquiry on Torture (NCCIT) revealed the culpability of state and local officials in a U.S. program of extraordinary rendition and torture. In response to these revelations, the Tenth Amendment Center has developed model legislation to would bar state participation in such programs. The Human Dignity Protection Act […]]]>

In late 2017, Testimony offered before the North Carolina Commission of Inquiry on Torture (NCCIT) revealed the culpability of state and local officials in a U.S. program of extraordinary rendition and torture. In response to these revelations, the Tenth Amendment Center has developed model legislation to would bar state participation in such programs.

The Human Dignity Protection Act would bar state and local agencies, along with their employees, from participating, in or providing material support for, “any action that would subject a person to extraordinary rendition, torture or enhanced interrogation techniques.” The legislation also includes provisions that would bar the state and its political subdivisions from doing business with any corporation that assisted with or provided support for torture.

State, county or local employees found to have assisted in torture programs in violation of the law would lose their jobs and would “forever thereafter ineligible to any office of trust, honor or emolument under the laws of this state.” Local or state agencies found in violation of the law would lose funding.

EFFECTIVE

Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” is an extremely effective method to hamper present or future torture programs.The federal government depends on state and local support for virtually very it does. As the NCCIT found, this includes torture and rendition.

According to the report, North Carolina served as a staging ground for Bush-era “extraordinary rendition” flights. Aircraft owned by a North Carolina-based company flying out of publicly-funded airports in Smithfield and Kinston picked up suspected terrorists in and transported them to CIA “black sights” in other countries. Suspects were illegally detained in these third-party countries without charges. In some cases, prisoners were held in facilities run by the host countries. In other situations, they were held in CIA or U.S. military facilities. Regardless, captives were held secretly, denied access to families or lawyers, and tortured during their interrogations.

As we reported, support from the state of North Carolina and several of its political subdivisions made Areo’s work for the CIA possible.

“For its business, Aero relies on and benefits from North Carolina state and local resources. Its officeholders and employees are real-life residents of Johnston County or North Carolina. North Carolina and its political subdivisions have supported Aero in a number of ways, including by providing county resources to operate its business. North Carolina extended credit to Aero for the construction of a hangar at the Global TransPark Authority in Kinston.

Johnston County facilitated Aero’s operations by providing permits for construction work and by conducting site safety inspections of Aero’s premises. Aero was intricately involved in the extraordinary rendition of individuals to overseas facilities and black sites, and as a North Carolina-based corporation, could not have carried out these functions without the support and resources of the state of North Carolina and its political subdivisions.” [emphasis added]

Since the federal government depends on state and local support to operate torture and rendition programs, withdrawing that assistance will make it more difficult for torture programs to operate.

LEGAL BASIS

The Human Dignity Protection Act rests on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program. The anti-commandeering doctrine is based primarily on five Supreme Court cases dating back to 1842. Printz v. U.S serves as the cornerstone.

“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”

Under the anti-commandeering doctrine, state and local government are under no obligation to assist in federal torture or rendition programs. They can legally prohibit all support and withhold any and all state resources.

]]>Paging Dr. Madison! Or How I Learned to Stop Worrying and Love the 10th Amendmenthttps://tenthamendmentcenter.com/2019/02/11/paging-dr-madison-or-how-i-learned-to-stop-worrying-and-love-the-10th-amendment/ Mon, 11 Feb 2019 10:02:02 +0000http://tenthamendmentcenter.com/?p=28223"Rather than make America great again (again?), my hope is to make America America again."]]>

“The essence of Government is power; and power, lodged as it must in human hands, will ever be liable to abuse.” -James Madison, Speech in the Virginia constitutional convention, Richmond, Virginia, December 2, 1829

Pessimism is popular. Reading Twitter and social media, you would think the Republic is coming to an end. Imagine that – our grand, 250-year experiment in representative democracy, snuffed out by an ambiguous confrontation involving some teenagers at the Lincoln Memorial.

The defining trend of modern politics is the sudden rush to judgment by partisans of all stripes to find, feather, and tar the ideal scapegoat in order to further their agenda. We saw it with the Kavanaugh hearings. We see it with Trump’s demonization of illegal immigrants. And now we are seeing it with the Covington Catholic debacle.

We are all tribalists now. If you haven’t picked a side, we’re told, it’s only a matter of time before the pressure will force you to do so. Of course, the founders of this country saw this coming and built a system in which these factions were supposed to check one another. We need not be defined as a nation by any single faction.

James Madison defined a faction as “a number of citizens, whether amounting to a minority or majority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”

Behind all of the vitriol on Twitter and the media pretending to be neutral observers, we see a brute fact revealing what politics is really about. Government, Madison reminds us, is power—the ability to force one’s will on another group of human beings. Nathan Phillips and Nick Sandmann are just pawns in a broader power struggle that intensifies as more and more decisions are made in Washington D.C. rather than at the state and local level where they were supposed to be made all along.

When power solidifies in Washington D.C., there is a demonstrative erosion of freedom. When people feel freedom disappearing, they feel powerless. This brings out the worst in them.

I have painfully concluded that Washington has abandoned its limited but essential constitutional mission of protecting our rights to life, liberty, and pursuit of happiness in favor of growing its own grotesque and cancerous power. The transfer of power from local to remote evolved from a combination of ill-advised Constitutional amendments, and some unfortunate Supreme Court cases.

Of course, somebody has to write the laws. Fortunately, states remain – as Justice Louis Brandeis suggested – the “laboratories of democracy,” giving citizens the ability to “vote with their feet” in search of more limited government and greater control over their lives. The founders always intended that most power over citizens should reside in the states and cities.

Thus, a Californian who opposes a “nanny state” government of high taxes, and wealth transfers, can move to Texas. With most political power held by a federal government, the choice, if you can call it that, would be moving to another country. This is a much more significant decision than moving to Austin, Texas from California.

I remain optimistic because of the progress being made – sometimes quickly, sometimes slowly — in the “several states.” Happily, states are rediscovering their historic powers affirmed by the Ninth and 10th Amendments. We see this in areas of drug policy, criminal justice reform, school choice, eminent domain, and even immigration here in my home state of California. Washington is more remote and aloof to Americans than England was several centuries ago to the colonists. States are responding to the needs of their citizens exactly as the founders intended.

Federalism should not be conflated with the misleading agenda of “states’ rights,” which has often been used to justify even greater violations of individual liberty than federal encroachments. After all, states have no rights; only people do. (The states surrendered the most important “right” they had when they ratified the 17th Amendment). Political powers promote the preservation of liberty when they are decentralized – beginning with the devolution from the federal government to states and localities.

There are few policies beyond those which protect our natural rights, which must or should be imposed nationally. We will not lose our nationhood with states dictating the speed limit, drinking age, minimum wage, healthcare policy and the like. When we need to be one nation, such as in time of war, soldiers from New York would still fight alongside soldiers from Iowa. They might not understand nor agree with each other’s politics, but there wouldn’t be any hatred because the guy from New York would not be imposing his will on the conservative from Iowa.

This, in short, is the new federalism – federalism 2.0. While it is not a panacea, it is what the founders envisioned. Rather than make America great again (again?), my hope is to make America America again. Until we restore constitutional limits to federal power, the power struggles will only get uglier.

]]>Why the “National Public Vote” Scheme is Unconstitutionalhttps://tenthamendmentcenter.com/2019/02/09/why-the-national-public-vote-scheme-is-unconstitutional/ Sat, 09 Feb 2019 10:55:08 +0000http://tenthamendmentcenter.com/?p=28246In assessing the constitutionality of NPV, you have to consider some of its central features.]]>

The U.S. Supreme Court says each state legislature has “plenary” (complete) power to decide how its state’s presidential electors are chosen.

But suppose a state legislature decided to raise cash by selling its electors to the highest bidder. Do you think the Supreme Court would uphold such a measure?

If your answer is “no,” then you intuitively grasp a basic principle of constitutional law—one overlooked by those proposing the “National Popular Vote Compact” (NPV).

NPV is a plan to change how we elect our president. Under the plan, each state signs a compact to award all its electoral votes to the presidential candidate who wins the national popular vote. The compact comes into effect when states with a majority of presidential electors sign on.

In assessing the constitutionality of NPV, you have to consider some of its central features. First, NPV abandons the idea that presidential electors represent the people of their own states. Second, it discards an election system balanced among interests and values in favor of one recognizing only national popularity. That popularity need not be high: A state joining the NPV compact agrees to assign its electors to even the winner of a tiny plurality in a multi-candidate election.

Third, because NPV states would have a majority of votes in the Electoral College, NPV would effectively repeal the Constitution’s provision for run-off elections in the House of Representatives.

Fourth, NPV requires each state’s election officer to apply the vote tabulations certified by other state election officers—even if those tabulations are known to be fraudulent or erroneous. Indeed, NPV would give state politicians powerful incentives to inflate, by fair means or foul, their vote totals relative to other states.

Don’t changes that sweeping require a constitutional amendment?

In answer to this question, NPV advocates point out that the Constitution seemingly gives state legislatures unlimited authority to decide how their electors are appointed. They further note that the Constitution recognizes the reserved power of states to make compacts with each other. Although the Constitution’s text requires that interstate compacts be approved by Congress, NPV advocates claim congressional approval of NPV is not necessary. They observe that in U.S. Steel v. Multistate Tax Comm’n (1978) the Supreme Court held that Congress must approve a compact only when the compact increases state power at the expense of federal power.

NPV advocates may be wrong about congressional approval. It is unclear that the justices would follow U.S. Steel’s ruling now. The Constitution’s language requiring congressional approval is crystal clear, and the court today is much more respectful of the Constitution’s text and historical meaning than it was in 1978. Moreover, you can make a good argument that U.S. Steel requires congressional approval for NPV because NPV would weaken federal institutions: It would (1) abolish the role of the U.S. House of Representatives in the electoral process and (2) alter the presidential election system without congressional involvement. Furthermore, even the U.S. Steel case suggested that compacts require congressional approval whenever they “impact . . . our federal structure.”

A more fundamental problem with NPV, however, is that with or without congressional approval it violates a central principle of constitutional law.

The Constitution recognizes two kinds of powers: (1) those reserved by the Tenth Amendment in the states by reason of state sovereignty (“reserved powers”) and (2) those created and granted by the Constitution itself (“delegated powers”). Reserved powers are, in James Madison’s words, “numerous and indefinite,” but delegated powers are “few and defined.”

A state’s power to enter into a compact with other states is reserved in nature, and it almost always involves other reserved powers, such as taxation and water use. Such was the compact examined by the Supreme Court in the U.S. Steel case.

As for delegated powers, the Constitution grants most of these to agents of the federal government. However, it also grants some to entities outside the federal government. Recipients include state legislatures, state governors, state and federal conventions, and presidential electors.

The scope of delegated powers is “defined” by the Constitution’s language, construed in light of its underlying purpose and its historical context. If state lawmakers or officers try to employ a delegated power in a way not sanctioned by its purpose and scope, the courts intervene.

For example, the courts often have voided efforts to exercise delegated powers in the constitutional amendment process in ways inconsistent with purpose or historical understanding. This is true even if the attempt superficially complies with the Constitution’s text.

Like a state legislature’s authority to act in the amendment process, its power to decide how electors are appointed is a delegated one. In exercising it, the legislature must comply with the overall purpose of the presidential election system and the historical understandings surrounding it. For example, the Founders, including those who approved the 12th amendment, designed the system to serve multiple interests, not merely candidate popularity. And they conceived of an elector as a person who acted on behalf of the people of his state—much like a legislator, but with more limited functions.

In deciding how electors are appointed, state lawmakers may choose among a range of procedures. But they have a constitutional duty to choose a method consistent with the electoral system’s purpose and design. Attempting to convert electors into agents of other states—like selling them to the highest bidder—would be an unconstitutional breach of public trust.

]]>The President’s Power to Suspend and Terminate Treatieshttps://tenthamendmentcenter.com/2019/02/07/the-presidents-power-to-suspend-and-terminate-treaties/ Thu, 07 Feb 2019 08:59:08 +0000http://tenthamendmentcenter.com/?p=28243"the President does have this power, so long as the suspension or termination is in accord with the terms of the treaty or with the international law of treaties."]]>

The Trump administration’s announcement that it is suspending the Intermediate-Range Nuclear Forces Treaty with Russia, and that it will terminate the treaty in six months unless Russia moves toward full compliance, has produced little reaction in legal commentary. (I couldn’t find anything on it on reliably anti-Trump national security law blogs like Lawfare or Just Security.)

But does the President have constitutional power to suspend or terminate treaties? Apparently it’s widely assumed that he does, perhaps as a result of historical and modern practice, as explained by Curtis Bradley in this article: TreatyTermination and Historical Gloss. That isn’t a sufficient answer from an originalist perspective, however.

My originalist answer is: yes, the President does have this power, so long as the suspension or termination is in accord with the terms of the treaty or with the international law of treaties. As argued here, suspension and termination are part of the President’s executive power in foreign affairs — that is, foreign affairs powers that were viewed in the eighteenth century as part of the traditional executive power and which were not assigned elsewhere by the Constitution. Like a number of other foreign affairs powers (such as establishing foreign policy, directing and removing ambassadors, and entering into executive agreements, it is not mentioned directly in the Constitution, and thus remains part of the “executive Power” vested in the President by Article II, Section 1.

The issue came up early in the post-ratification period, in 1793, when President Washington considered whether to suspend the U.S. treaties with France after the French Revolution. In the cabinet, Treasury Secretary Hamilton argued for suspension and Secretary of State Jefferson argued against it — but both assumed the President had the constitutional power. Jefferson (who like Hamilton endorsed the idea of executive foreign affairs power) argued against suspension on the merits, but not on constitutional grounds.

The counterarguments are that suspension/termination power should lie with Congress or the Senate. As to the Senate, it’s true of course that entering into treaties requires approval of two thirds of the Senate. But that does not suggest that it should take two thirds of the Senate to withdrawn. It takes a majority of the Senate to approve an appointment to an executive office, we don’t conclude that (as a constitutional requirement) removal of an executive officer needs majority Senate approval. The Constitution is not founded on an idea of reciprocal powers (that is, that the same entity that approves something must consent to undoing it).

As to Congress, I agree that Congress can terminate treaties in areas within its enumerated powers. In exercising its enumerated powers, Congress may find that an existing treaty is a barrier to achieving the outcome Congress prefers. Terminating the treaty is thus necessary and proper for carrying into execution the enumerated power. Indeed, in doing so Congress is not limited to terminating treaties in accordance with their terms. But Congress can do so only in pursuit of an enumerated power, not generally. Treaty termination is not a textually identified independent power of Congress (the way, for example, declaring war is). Thus it does not displace the President’s treaty termination power; rather, Congress and the President have concurrent powers.

To be clear, it’s an entirely different matter if the President seeks to terminate a treaty in violation of the treaty’s express or implied terms. Treaties are the supreme law of the land, by Article VI, and the President is constitutionally bound to faithfully execute the law. But in the case of the INF Treaty, the President is suspending it on the basis of Russia’s violation of the treaty (as the international law of treaties allows the U.S. to do) and is terminating it on the basis of the termination provisions of the treaty (six months’ notice). As a result, he is acting within his executive power in foreign affairs.

NOTE:This article was originally posted at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

]]>James Otis: The Founding Father of the Fourth Amendmenthttps://tenthamendmentcenter.com/2019/02/05/james-otis-the-founding-father-of-the-fourth-amendment/ Tue, 05 Feb 2019 16:47:12 +0000http://tenthamendmentcenter.com/?p=28244Unfortunately, “one of the most passionate and effective protectors of American rights” is too-little remembered today.]]>

by Gary M. Galles

February 5 marks the birth of the American who had the greatest hand in what became the 4th Amendment’s prohibition of unreasonable searches and seizures – James Otis. Unfortunately, “one of the most passionate and effective protectors of American rights” is too-little remembered today.

Otis’ efforts applied the celebrated English maxim, “Every man’s house is his castle” – or, as William Pitt said in Parliament in 1763, that “The poorest man may in his cottage bid defiance to all the force of the crown” – to the colonies, in resistance to Crown-created writs of assistance. They were broad search warrants enabling customs officials to enter any business or home without advance notice, probable cause, or reason, which Otis asserted were unconstitutional.

Otis was an advocate general in the vice-admiralty court with responsibilities including prosecuting smuggling, to which Britain’s onerous trade restrictions had turned many. But when the Crown imposed writs of assistance to crack down, Otis resigned his post in protest and represented, without charge, Boston merchants’ efforts to stop the writs. For five hours he argued that they violated citizens’ natural rights, putting them beyond Parliament’s powers. A young John Adams listened to Otis’ oration, at which “the child’s independence was then and there born.”

Otis lost the case, but public wrath discouraged officials from employing the writs. Otis then became influential, his role growing with American grievances. He led the Massachusetts Committee of Correspondence in 1764. He wrote pamphlets. He argued against Parliament’s power to tax colonists, particularly in The Rights of the British Colonies Asserted and Proved, and was a leader at the Stamp Act Congress. Otis joined Samuel Adams to pen a circular to enlist other colonies in resisting the Townshend Duties.

John Adams said, “I have never known a man whose love of country was more ardent or sincere, never one who suffered so much, never one whose service for any 10 years of his life were so important and essential to the cause of his country, as those of Mr. Otis from 1760 to 1770.” Why then is he not better remembered? Because he then began suffering bouts of mental illness which ended his contributions before the Revolutionary War, whose many American heroes have eclipsed him in memory.

However, “search and seizure” issues permeate Americans’ liberties today. These include the exclusionary rule’s prohibition against admitting evidence gathered in violation of the 4th Amendment at trial and injured parties’ power to sue officers involved for damages suffered in unlawful searches. But they also include government spying on its citizens, as Edward Snowden’s leaks revealed, and questionable cell phone searches, in which, as Justice Anthony Kennedy’s words, “someone arrested for a minor crime has their whole existence exposed.” Such issues make it well worth revisiting Otis’ highly consequential insights.

James Otis’ argument was based on our liberty because we “are by the law of nature free born,” and that “[every] act against natural equity is void.” In consequence,

The end of government being the good of mankind … It is above all things to provide for the security, the quiet and happy enjoyment of life, liberty, and property. There is no one act which a government can have a right to make, that does not tend to the advancement of the security, tranquility and prosperity of the people.

Otis took our liberty, drawn in broad brushstrokes, and applied it specifically to our homes and possessions. He asked, “Can there be any liberty where property is taken away without consent?” and asserted that “One of the most essential branches of … liberty is the freedom of one’s house,” which writs of assistance steamroll. As he put it,

A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ … would totally annihilate this privilege. Custom-house officers may enter our houses when they please … break … everything in their way; and whether they break through malice or revenge, no man, no court may inquire.

Otis then asked what the consequence of violating those principles now articulated in our 4th Amendment would be. His answer was tyranny. “Everyone with this writ may be a tyrant.” And tyrannical violations of our rights that have occurred create no authorizing precedent.

[Even] if every prince … had been a tyrant, it would not prove a right to tyrannize. There can be no prescription old enough to supersede the law of nature, and the grand of God almighty; who has given to all men a natural right to be free.

Because “Tyranny of all kinds is to be abhorred,” Otis’ offered a principled and profound response:

I will to my dying day oppose, with all the powers and faculties God has given me, all such instruments of slavery on the one hand and villainy on the other, as this Writ of Assistance is.

The 4th Amendment is one of the most important playing fields on which the battle between liberty and tyranny is waged. That makes revisiting James Otis’ understanding critical. As Law Professor Thomas K. Clancy wrote:

James Otis first challenged British search and seizure practices and offered an alternative vision of proper search and seizure principles. No authority preceding Otis had articulated so completely the framework for the search and seizure requirements that were ultimately embodied in the Fourth Amendment.

Gary M. Galles is a professor of economics at Pepperdine University. His recent books include Faulty Premises, Faulty Policies (2014) and Apostle of Peace (2013). He is a member of the FEE Faculty Network.

]]>Shut Down the TSA!https://tenthamendmentcenter.com/2019/02/04/shut-down-the-tsa/ Mon, 04 Feb 2019 23:15:15 +0000http://tenthamendmentcenter.com/?p=28237"Congress should permanently close the TSA and return responsibility for security to private businesses."]]>

Hard as it is to believe, airline travel recently became even more unpleasant. Transportation Security Administration (TSA) employees being required to work without pay for the duration of the government shutdown resulted in many TSA workers calling in sick. The outbreak of “shutdown flu” among TSA employees forced some large airports to restrict the number of places mandatory TSA screenings were performed, making going through screening even more time-consuming and providing one more reason to shut down the TSA.

Airline security should be provided by airlines and airports. Private businesses, such as airlines, have an incentive to ensure their customers’ safety without treating them like criminal suspects or worse. Security personnel hired by, and accountable to, airlines would not force a nursing mother to drink her own breast milk or steal a stuffed lamb from a wheelchair-using three-year-old and subject the child to such an intensive screening that she cries “I don’t want to go to Disneyworld.” Those who claim that the TSA is necessary to keep us safe should consider that the Department of Homeland Security’s own studies show that TSA’s screenings and even the intrusive pat-downs are ineffective at discovering hidden guns, explosives, and other weapons.

TSA employees have no incentives to please, or even care about the well-being of, airline passengers. Instead, their jobs depend on pleasing politicians and bureaucrats. If we have learned anything since 9/11, it is that most politicians are more concerned with appearing to be “doing something” about security than actually reducing the risk of terrorist attacks. That is why politicians’ response to 9/11 was a series of actions — such as creating the TSA, passing the PATRIOT Act, and invading Iraq — that trade our real liberties for phantom security. Sometimes, pro-TSA politicians will bemoan the TSA’s “excesses” and even call for “reforming” the agency in order to pretend they care about their constituents’ rights.

Restoring responsibility for providing security to private businesses will encourage the development of new and innovative ways to more effectively provide security. In a free market, airlines and airports could compete for business on the basis that their flights are safer or their screening is less unpleasant then that of their competitors. If airlines were able to set their own security policies, they would likely allow pilots to carry firearms.

Private companies also strive to be consistent in providing services. Therefore, a company providing private security would never inconvenience its customers because of a “temporary shutdown.”

Because government operations are funded by coercive taxation rather than voluntary choices of consumers, federal officials cannot rely on the price system to inform them of whether they need to increase or decrease spending on airline security. In the private sector, businesses that charge more for security — or any other good or service — than individuals are willing to pay lose customers. Also, if businesses do not spend enough on security, people concerned about safety will be unwilling to use their services. Privatizing airline security is the only way to ensure that the “correct” amount of resources is being spent on airline safety.

In the 18 years since Congress created the TSA, the agency has proven itself incapable of providing real security, but more than capable of harrying Americans and wasting taxpayer dollars on security theater. Congress should permanently close the TSA and return responsibility for security to private businesses.

]]>Details of Fusion Center Surveillance Revealedhttps://tenthamendmentcenter.com/2019/02/02/details-of-fusion-center-surveillance-revealed/ Sat, 02 Feb 2019 23:18:42 +0000http://tenthamendmentcenter.com/?p=28232The federal Department of Homeland Security (DHS) is silently and gradually converting local police agencies into regional subdivisions of the surveillance state. Typically, we get only occasional glimpses of the despotic disregard for the Constitution and egregious violation of the rights of the people committed by DHS fusion centers. Thanks to a presentation delivered by […]]]>

The federal Department of Homeland Security (DHS) is silently and gradually converting local police agencies into regional subdivisions of the surveillance state.

Typically, we get only occasional glimpses of the despotic disregard for the Constitution and egregious violation of the rights of the people committed by DHS fusion centers.

Thanks to a presentation delivered by a sheriff’s department sergeant at a casino in West Virginia, the scope of the surveillance and the blurring of the lines between federal, state, and local law enforcement were revealed without the typical reserve shown at similar gatherings.

Here’s the remarkably forthcoming report of the pro-Fusion Center address as reported by the Shepherdstown (West Virginia) Chronicle. I’ll advise you to read closely the content of Sergeant Robert Sell’s description of the DHS fusion center where he works. The pride permeating the remarks made about the nearly unbelievable submission of local control of police is dismaying.

The story as reported:

The Fusion Center, which was the topic of Sell’s talk at the Friday luncheon, is located in Charleston and is a partnership between public and private entities encompassing local, state and federal law enforcement, public safety agencies, and the private sector. The Center’s mission is to anticipate, identify, prevent, monitor criminal activity and all other hazards, then responsibly distribute their findings while protecting the rights of the citizens of the state and the agencies involved.

“The bottom line,” Sell said during his talk, “is that the Fusion Center reaches out to many different levels within the community to gather information, process, analyze, predict and ultimately issue warnings or alerts as appropriate.”

Sell explained that the local FLO’s provide information at state and national levels, as well as locally when necessary.

“You may be surprised at the range of topics that are researched at the Fusion Center,” Sell told attendees. “They include terrorism, both international and domestic, gangs, security threat groups, auto theft, high technology crime, threats to public order, special events and civil emergencies, threats to government, law enforcement and critical infrastructure, identity theft and fraud, major serial arson, major alcohol, tobacco and explosives incidents, HAZMAT incidents and any international incidents with potential local impact.”

According to Sell, the driving force behind the creation of Fusion Centers was the September 11 attacks on U.S. soil.

“The 9/11 Commission report outlined many deficiencies in the intelligence community,” Sell said, “as well as lack of communication and information sharing both within and across government organizations, technology problems, lack of standards and policies and the need for a unified process for reporting, tracking an accessing Suspicious Activity Reports [SARs], to name a few.”

SARs can now be submitted by anyone.

“There is even an app for submitting,” Sell said.

Want to be rewarded for spying on your neighbors, citizen? Good news! There’s an app for that!

Seriously. The sergeant’s seemingly joyful description of his department’s submissiveness to the federal DHS is unpatriotic in so many ways and unworthy of a man who likely swore to serve and protect his fellow citizens of Jefferson County, West Virginia.

It isn’t as though we shouldn’t have seen this coming.

In 2012, a special white paper was submitted to the House of Representatives wherein the DHS was encouraged to embark on an “evolving mission” away from its ostensible purpose of fighting terrorism, toward becoming the administrator of an enormous domestic intelligence agency resulting from an integration of the country’s local and state law-enforcement agencies.

This report was written by the Aspen Institute Homeland Security Group, co-chaired by former DHS chief Michael Chertoff. The blueprint promoted in the White Paper pushes Congress toward green-lighting the growth of the DHS and the dissolution of local police and sheriffs.

The organization described in the paper, entitled “Homeland Security and Intelligence: Next Steps in Evolving the Mission,” is reminiscent of more draconian governments. For example, one section of the report calls for a transition in the mission of DHS away from protecting the country from the “terrorism” of foreign militants and toward “more specific homeward focused areas.” Additional sections of the report lay out the plans for building a DHS/police hybrid agency that can monitor Americans in any town and prevent threats from fellow citizens.

In order to achieve their ultimate aim, the globalists demand that the DHS or some other federal agency take control of the personnel decisions currently made by local police chiefs and county sheriffs. “As the threat grows more localized,” the report claims, “the federal government’s need to train, and even staff, local agencies, such as major city police departments, will grow.” Put another way: The federal government will run your local police department and sheriff’s office.

The establishment of fusion centers is a key component of this plan. The following information is taken from a fact sheet on fusion centers posted on the DHS website:

“A fusion center is a collaborative effort of two or more agencies that provide resources, expertise and information to the center with the goal of maximizing their ability to detect, prevent, investigate, and respond to criminal and terrorist activity.”

A description of the functioning of these incubators for the forthcoming federal police force is also provided on the DHS site:

State and major urban area fusion centers (fusion centers) serve as primary focal points within the state and local environment for the receipt, analysis, gathering, and sharing of threat-related information among federal, state, local, tribal, and territorial (SLTT) partners…. Fusion centers conduct analysis and facilitate information sharing, assisting law enforcement and homeland security partners in preventing, protecting against, and responding to crime and terrorism.

The literature promoting the acceptance of fusion centers lists several ways the new federal agency will impose its will on the formerly autonomous and accountable police chief or county sheriff.

Sadly, every one of the reprehensible recommendations made in the 2012 white paper are boasted about by Sergeant Sell in his speech.

Sergeant Sell and all his fellow law enforcement officers who are eagerly taking money and marching orders from the federal government should be reminded of the fact that there is not a single syllable of the Constitution authorizing any such federal participation in law enforcement.

If the power isn’t granted to the federal government in the Constitution, then authority over that area remains with the states and the people as described in the 10th Amendment.

In many cities and towns there is still time to stop the march toward consolidation. State and local sovereignty is the solution. Constitutional sheriffs and conscientious police chiefs are the last line of defense of the traditional mission of American law enforcement and should be jealous of their responsibilities, and should never permit politicians to hand those duties over to companies, cabals, or federal agencies.

Citizens should be concerned about the consolidation, as it will result in their loss of direct control over their neighborhood law enforcement.

The further away law enforcement is from the direct involvement of the local citizen, the less responsive it becomes to the local citizen.

I’ll close with comments made by Sergeant Sell as quoted in the Shepherdstown article.

“I maintain current training in situational recognition, information analysis and dissemination and threat vulnerabilities,” Sell said. “I also receive information from the Fusion Center and distribute to specific agency contacts, receive leads which originate from within the agency or the community regarding suspicious activity and know who needs to know the intelligence and information I acquire.”

Someone needs to send Sell and everyone at the Jefferson County Sheriff’s Department a copy of the Constitution — quickly!

EDITOR’S NOTE: This article was originally published at The New American Magazine and reposted here with permission from the author.

]]>What Is Originalism?https://tenthamendmentcenter.com/2019/01/31/what-is-originalism/ Thu, 31 Jan 2019 12:28:54 +0000http://tenthamendmentcenter.com/?p=28226Although originalists disagree among themselves over some details, they share one core belief: The courts should read the U.S. Constitution much the same way they read other documents.]]>

When President Trump nominated Neil Gorsuch and Brett Kavanaugh to the Supreme Court, it was widely claimed he was appointing “originalists.”

What is an originalist? Although originalists disagree among themselves over some details, they share one core belief: The courts should read the U.S. Constitution much the same way they read other documents. Judges should not create special exceptions to accommodate politicians or favored groups.

The standard rules for interpreting legal documents—often called “canons of construction”—are centuries old. Some date as far back as the Roman Empire. Originalism is how the Founders expected the Constitution to be interpreted. If you examine the Federalist Papers, you’ll find occasional references to the canons of construction.

Most of the canons are designed to serve one fundamental principle: They help us understand a document the same way the document’s creators understood it.

This basic principle applies to almost all documents. For example, suppose your spouse sends you to the grocery store with a shopping list. The list tells you to buy vegetables. In reading it you interpret the word “vegetables” as your spouse would have. You don’t “re-interpret” the word to mean “chocolate cake.” You remain faithful to your spouse’s intent even if you wish he or she had written “chocolate cake” instead.

Or consider the rules of a game. In baseball, you construe the rules for what they were designed to be. You read “three strikes” to mean just that. You don’t get five strikes just because you disagree with the three strike rule—or because you happen to be the batter.

This is basic honesty. For 150 years after the Constitution was adopted the judges shared a commitment to honesty in constitutional interpretation. When confronted with a phrase of uncertain meaning, they looked to the circumstances under which the phrase was adopted. They tried to recreate the understanding of those who wrote and ratified the Constitution. Yes, they sometimes made mistakes. But most of their decisions were defensible.

During the late 1930s and early 1940s, however, the government faced pressures from economic depression and World War II. Congress and the president frequently adopted measures the Constitution places outside their authority. At first, the Supreme Court tried to accommodate the government to the extent the Constitution permitted. But by the early 1940s the bench had become dominated by justices with little prior judicial experience. They changed the constitutional rules to permit Congress and the president to do things the Constitution actually forbids.

For example, the Constitution divides responsibility for regulating the economy between the states and the federal government. By the end of 1942 the court had granted almost all power over the economy to the federal government.

Similarly, the Constitution generally forbids the president from locking up people on U.S. territory without trial or access to the writ of habeas corpus. But in 1944 the court approved President Franklin Roosevelt’s order herding over 100,000 American citizens of Japanese descent into concentration camps, without trial or possibility of release. The court’s excuse was “pressing public necessity.”

In subsequent years, the court has used the same rationale—now often mislabeled the “strict scrutiny” test—to allow officials to curtail other constitutional rights. And the court has compounded these mistakes by expanding some rights beyond their constitutional scope.

The court has “re-interpreted” constitutional phrases to mean things they never meant before. Some of the results are ludicrous. For example, when the phrase “due process of law” was inserted in the Constitution it meant this: If the government proceeds against you, the government has to follow existing law in doing so. It cannot make up new rules retroactively. But in 1973, the Supreme Court “reinterpreted” the phrase to mean that states could not ban abortion!

Of course, you may agree that the states should permit abortion. But that’s not the point. An originalist believes what is important in a particular case is not what you or I think the law should say, but what it actually does say. If we disagree with a law, we can change it. If we disagree with part of the Constitution we can amend it. Having the courts unilaterally re-write the rules defies both democracy and legal fundamentals.

Fortunately, the courts still interpret most of the Constitution in a matter faithful to its true meaning. The damage has been principally in the following areas:

* The courts have expanded Congress’s Commerce Power—which was originally designed to cover trade and a few allied areas—into a power to control almost the entire economy. The courts have expanded it further to enable Congress to pass many criminal laws in areas the Constitution reserves to the states.

* They have expanded Congress’s Taxation Power to allow Congress to spend any amount it wants on almost anything it wants. That is why the government almost always runs a deficit and is more than $21 trillion in debt.

* They have expanded the federal government’s power to own land for certain purposes into a power to own land for any purpose. Today the federal government holds title to nearly 30 percent of the country and about 50 percent of the West. The raging wildfires you hear about in the West are largely due to federal mismanagement.

* The courts have used the Constitution’s Equal Protection Clause and its Due Process Clauses to re-write state and federal social policy—often in direct defiance of the popular will. In some cases, the courts have even ordered states to provide subsidies or other benefits to groups the judges favor!

Will the appointment of Justices Gorsuch and Kavanaugh change this? Probably not. Today the only consistent originalist on the Supreme Court is Justice Clarence Thomas. A case decided last year showed that while Justice Gorsuch may have originalist sympathies, he is not as consistent as Thomas. And Justice Kavanaugh’s background suggests he may be more interested in preventing further abuses than in correcting earlier mistakes.

]]>Most People Treat the Constitution Like it’s Only a Suggestionhttps://tenthamendmentcenter.com/2019/01/29/most-people-treat-the-constitution-like-its-only-a-suggestion/ Tue, 29 Jan 2019 10:14:49 +0000http://tenthamendmentcenter.com/?p=28220The Constitution is really just a series of suggestions. At least that’s how most American treat it. The concept of a “Living Breathing Constitution” is the biggest enduring myth in America’s political narrative. It used to be primarily a left-wing dogma. But in the era of Trump, an awful lot of people on the right […]]]>

The Constitution is really just a series of suggestions. At least that’s how most American treat it.

The concept of a “Living Breathing Constitution” is the biggest enduring myth in America’s political narrative.

It used to be primarily a left-wing dogma. But in the era of Trump, an awful lot of people on the right have embraced the myth as well.

A few weeks ago, I posted an article by KrisAnne Hall about the illegitimacy of presidential “emergency powers.” But I was told the constitutional argument wasn’t really important.

After all, we’re faced with a “crisis” at the border and it’s imperative that the president deals with it. Surely there is wiggle-room in the Constitution for the president to act. We can’t be dogmatic at times like this. The Constitution was meant to flex with the times!

“But Mike,” people say, “You can’t expect the government to be limited by a document written more than 200 years ago. It has to be able to flex and change with the times.”

Yes. I agree. And in their wisdom, the founders included a process to change the Constitution as needed. It’s called the amendment process. You will find it in Article V.

“But Mike,” people say. (People “but Mike” me a lot.) “It’s hard to amend the Constitution and it takes too long. We need to be able to react quickly in an emergency. We can’t be waiting around for amendments.”

Actually, that was the point. We don’t want to give government new powers every time there’s some perceived crisis. Once the government has a given power, it will never give it up. Not ever. The power you allow government to exercise today will remain with you forever. So, you darn well better slow your roll and count the cost.

Expanding government power should only be done with deliberation and by those with cool heads. It’s not something that should be done in the middle of a crisis. If you want a perfect example of what happens when government is allowed to grow in the midst of a crisis, just look at all of the garbage we got in the wake of 9/11.

The Patriot Act, the TSA, the Department of Homeland Security and a bunch of undeclared wars. That stuff is never going away. And sadly, in retrospect, those things did virtually nothing to “make us safer.”

As James Madison wrote, “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers.”

We cannot have a consistent and stable government when the dominant party can arbitrarily expand government power to address whatever “necessity” that it perceives. But sadly, that seems to be the kind of system most Americans want.

They like the idea of a Constitution in theory, but in practice, they don’t want it to be anything more than a suggestion.

]]>The Electoral College is still right for Americahttps://tenthamendmentcenter.com/2019/01/27/the-electoral-college-is-still-right-for-america/ Sun, 27 Jan 2019 20:17:20 +0000http://tenthamendmentcenter.com/?p=28217Criticisms of the Electoral College are regularly repeated in Democratic-controlled state legislatures. Those criticisms derive largely from ignorance as to why the Founders adopted the system they did. For example, it is not true, as some claim, that the Founders acted only out of distrust of democracy. Rather, the system was a brilliant response to a complicated […]]]>

Criticisms of the Electoral College are regularly repeated in Democratic-controlled state legislatures. Those criticisms derive largely from ignorance as to why the Founders adopted the system they did.

For example, it is not true, as some claim, that the Founders acted only out of distrust of democracy. Rather, the system was a brilliant response to a complicated set of issues — issues remaining with us today.

When the framers wrote the presidency into the Constitution, they created an office unlike any created before. The president was to be a single republican chief executive, exercising real power, and doing so within a true federal system with strong states.

Indeed, even today the office remains almost unique: Many Western style governments are parliamentary rather than presidential. Most of the presidential governments are unitary, or nearly unitary, rather than federal.

Having created a unique office, the Founders needed an adequate process for choosing its occupant. They set forth several criteria:

The electoral process had to produce presidents competent to discharge their extensive responsibilities. Not only must the president be qualified for the job, but he must be able to exercise judgment independent of Congress and of the states. Thus, those directly choosing among the candidates should either know them personally or have reliable knowledge of their character and qualifications.

The process should give great weight to popular preferences, while minimizing dangers of “stampeding” and other mob-like behavior.

It should reduce the risks of foreign and other secret influence.

It should balance state and national interests.

It should produce presidents of national stature. A purely regional executive could tear the country apart, either by his election or by policies favoring some parts of the country at the expense of others.

The process should discourage states from trying to increase their influence by artificially inflating their vote levels.

Some of these criteria contended against each other. For example, the new electoral system had to accommodate state interests, but the accommodation should not go so far as to allow the states to dictate the winner.

The final result was the product of weeks of convention debate, further discussion in an extraordinarily talented convention committee, and subsequent modification by the convention at large and by the 12th Amendment.

Here’s how the system addresses the criteria listed above.

To assure the president is a person of national standing, each elector votes for two candidates, at least one of whom is not from the elector’s home state. The winning candidate must garner a majority — not merely a plurality — of electors.

If no candidate wins a majority, there is a run-off election in the House of Representatives. The vote in the House is by state delegation. Two thirds of all Representatives must be present, and the affirmative vote of a majority of all states is necessary for election.

Thus, even if the winner is not the most popular person in the country, at least he enjoys wide national support. Candidates with merely regional support almost never win.

Electors are temporary officers. The president does not owe his job to Congress or to any collection of standing officers or states. This ensures the president’s independence.

Each state’s electors convene in their own state capitals rather than in a central location. This reduces risks of mob-like behavior, foreign influence, improper lobbying, and corruption.

State-by-state voting ensures that cases of voter fraud are contained within state boundaries. State-by-state voting also reduces incentives for inflating state popular vote totals.

Electoral votes are distributed among states mostly by population, but each has at least three votes. The balance between state and national interests also is evident in the rules for the House run-off.

State governments decide how electors are chosen, but — under a proper reading of the Constitution — cannot dictate their decisions. Electors may campaign as favoring certain candidates, parties, or views. But like other officials they are supposed to remain free to change their minds.

The electors’ independent discretion would, if still honored, encourage those selecting them (today in all states, the people) to choose citizens able to make informed decisions.

Did the Electoral College worked as intended in 2016? Yes and no.

It worked insofar as it denied election to Hillary Clinton, who, although the popular vote choice, was largely a regional candidate. But it failed to work insofar as state statutes prevented electors from voting for any candidates other than two widely seen as unacceptable. Those statutes also discouraged qualified people from seeking the office of presidential elector.

]]>Attorney General Nominee Barr Admits Nullification Workshttps://tenthamendmentcenter.com/2019/01/25/attorney-general-nominee-barr-admits-nullification-works/ Fri, 25 Jan 2019 11:46:28 +0000http://tenthamendmentcenter.com/?p=28214Thirty-three states have effectively nullified federal marijuana laws. U.S. Attorney General nominee William Barr said so during his confirmation hearing when he called the current system “back door nullification.” Back door or front door, the practical effect is the same — the feds can’t enforce federal prohibition. Barr affirmed the effectiveness of state nullification when he […]]]>

Thirty-three states have effectively nullified federal marijuana laws. U.S. Attorney General nominee William Barr said so during his confirmation hearing when he called the current system “back door nullification.”

Back door or front door, the practical effect is the same — the feds can’t enforce federal prohibition.

Barr affirmed the effectiveness of state nullification when he said he would reverse a policy implemented by former Attorney General Jeff Sessions and the Department of Justice would not prosecute marijuana users, cultivators or businesses in states that have legalized cannabis.

In early 2018, Sessions rescinded the Cole Memo, an Obama-era order that directed prosecutors to take to take a somewhat hands-off approach in states that have legalized marijuana. While asserting that marijuana is illegal under federal law, the directive prioritized enforcement based on several criteria including preventing the distribution of marijuana to minors, stopping interstate trafficking, stopping drug money from funding gangs and criminal enterprises, preventing drugged driving and a few other priorities.

During his confirmation hearing, Barr said he would uphold the Cole doctrine.

“I’m not going to go after companies that have relied on Cole memorandum … “To the extent that people are complying with the state laws in distribution and production and so forth, we’re not going to go after that.”

But it’s not that Barr is a marijuana advocate. Quite the opposite. He is a prohibitionist. During the hearing, he said he thinks it would be a mistake to “back off” on federal marijuana laws.

“We either should have a federal law that prohibits marijuana everywhere, which I would support myself, because I think it’s a mistake to back off from marijuana. If we want a federal approach, if we want states to have their own laws, let’s get there, and let’s get there the right way.”

Wait. Ummm, Willie, there is a federal law that prohibits marijuana everywhere.

The problem for Barr and his fellow drug warriors is that states started ignoring federal prohibition in 1996 with when California legalized cannabis for medical. Despite aggressive federal efforts to clamp down and enforce prohibition, the movement quickly grew. Today, 33 states have legalized medical marijuana and 10 states have legalized cannabis for adult use.

So, if Barr is so gung-ho on prohibition, why not crack down? Why not maintain Sessions’ policy of enforcement?

Because he knows the feds can’t do it without state and local cooperation. The DoJ doesn’t have the personnel or resources to enforce prohibition alone. Barr just might be marginally smarter than Sessions. He seems to at least acknowledge reality staring him in the face.

The fact of the matter is the marijuana Jeanie is not going back in the bottle. Barr knows it. Hell, everybody knows it.

What Barr really meant when he rambled about a “federal approach” is that even though he doesn’t like it, Congress might as well go ahead and legalize cannabis at the federal level because that’s the current situation practically speaking. Prohibition remains on the books, but it’s unenforceable in practice. It would be just as well if Congress went ahead and make it official. At least then he would have to answer questions about it.

Barr called the current system “backdoor nullification.”

We call it nullification in effect.

And it works. Even the drug warriors know it.

]]>Campaign Finance Reform Helps Special Interestshttps://tenthamendmentcenter.com/2019/01/23/campaign-finance-reform-helps-special-interests/ Wed, 23 Jan 2019 14:57:08 +0000http://tenthamendmentcenter.com/?p=28212 Contrary to the claims of its supporters, campaign finance reform legislation does not limit the influence of powerful special interests.]]>

One of the new Democratic House majority’s top priorities is so-called campaign finance reform legislation. Contrary to the claims of its supporters, campaign finance reform legislation does not limit the influence of powerful special interests. Instead, it violates the First Amendment and burdens those seeking real change in government.

The First Amendment of the Constitution forbids Congress from interfering in any way with any citizen’s ability to influence government policies. Spending money to support candidates and causes is one way individuals influence government policies. Therefore, laws limiting and regulating donations to campaigns and organizations that work to change government policies violate the First Amendment.One very troubling aspect of campaign finance reform laws is forcing organizations involved in “electioneering” to hand over the names of their top donors to the federal government. Electioneering is broadly defined to include informing the public of candidates’ positions and records, even if the group in question focuses solely on advancing issues and ideas. Burdening these types of organizations will make it harder for individuals to learn the truth about candidates’ positions.

America has a long and distinguished tradition of anonymous political speech. Both the Federalist and the Anti-Federalist papers where published anonymously. As Justice John Marshall Harlan wrote in NAACP v. Alabama, where the Supreme Court upheld the NAACP’s right to keep its membership list confidential, “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”

Supporters of groups with “dissident beliefs” have good reason to fear new disclosure laws. In 2014, the IRS had to pay 50,000 dollars to the National Organization for Marriage because an IRS employee leaked donors names to the organization’s opponents. Fortunately, the Trump administration has repealed the regulation forcing activist groups to disclose their donors to the IRS. Unfortunately, Congress seems poised to reinstate that rule.

In recent years, we have seen the rise of authoritarian political movements that think harassment and even violence against those with differing views are acceptable tactics. Can anyone doubt that activists in these movements would do all they could to obtain the lists of donors to groups that oppose their agenda? They may be able to obtain the lists either by hacking government databases or by having a sympathetic federal employee “accidentally” leak the names.

As long as businesses can profit by currying favor with politicians and bureaucrats who have the power to reward or punish them via subsidies and regulations, powerful interests will find a way to influence the political process. These special interests seek out and reward politicians who support policies favoring their interests.

So foreign policy hawks can count on generous support from the military-industrial complex, supporters of corporatist health care systems like Obamacare can count on generous support from the health insurance-pharma complex, and apologists for the Federal Reserve can count on support from the big banks.

Special interests do not favor free-market capitalism. Instead, they favor a mixed economy where government protects the profits of large business interests. That is why big business is more likely to support a progressive or a “moderate” than a libertarian.

Campaign finance and donor disclosure laws will make it harder for grassroots liberty activists to challenge the corporatist status quo. Those wishing to get big money out of politics should work to get politics out of all aspects of the economy.

]]>Blind Partisanship is Toxichttps://tenthamendmentcenter.com/2019/01/21/blind-partisanship-is-toxic/ Mon, 21 Jan 2019 12:34:41 +0000http://tenthamendmentcenter.com/?p=28208Partisanship is one of the illnesses plaguing the U.S. body politic. We see this every election cycle as millions of voters cast straight-ticket ballots for candidates just because of the capital letter before their name. Voting records will be ignored. Rationalizations and excuses will be made. Bromides on how we must accept the “lesser of […]]]>

Partisanship is one of the illnesses plaguing the U.S. body politic.

We see this every election cycle as millions of voters cast straight-ticket ballots for candidates just because of the capital letter before their name.

Voting records will be ignored. Rationalizations and excuses will be made. Bromides on how we must accept the “lesser of two evils” will be shoved down our throats.

Lather, rinse, repeat.

Unbeknownst to many of these zealots, their steadfast devotion to the political establishment “right or wrong” is indirectly enabling the political class’s malfeasances. Incentives matter in politics, and it would behoove us to recognize that.

People often believe politicians are superhuman, but deep down they are still mortals. In fact, politicians behave like Pavlovian dogs who respond to external stimuli such as pain and pleasure.

In this case, voter pressure is the key stimuli. When politicians can consistently count on support from voters, they will run roughshod over our rights. Every ill-informed vote cast for establishment politicians is a green light for them to do as they please.

And when the same politician drops the ball legislatively, those who voted for him will not utter a peep. Such voter conformism is common in so-called “small-government” Republican circles. Sadly, it has been enabled by one of the movement’s golden boys—Ronald Reagan.

When Partisanship Meets Religion

The Eleventh Commandment, which Reagan popularized, states “Thou shalt not speak ill of any fellow Republican”. Since Reagan popularized this concept, a toxic environment of conformism and tolerance for preserving the status quo has emerged. If Republicans can’t be criticized for living up to their campaign promises, how can their ideas become implemented?

Any successful movement must have standards. The strategy of conservatism driving the speed limit can only go so far. When you start compromising and growing the size of government, it only emboldens the big government advocates on the Left. They are never satisfied and see any “Constructive Republican Alternative Proposal” (C.R.A.P) to grow government as a half-measure. Rest assured, they will dial up the statism and then some.

Give the statists a foot, and they’ll eventually take the whole mile.

Democrats are Also Guilty

To be fair, partisanship isn’t just confined to Republicans. Democrats also suffer from the same problem on issues such as drug liberalization and foreign policy. As the supposed champions of minorities and other marginalized constituencies, Democrats have lagged for decades on issues such as marijuana legalization. Over the past few decades, marijuana prohibition has led to the mass incarceration of millions of their constituents. In light of this alarming trend, Democrats did next to nothing, and in some cases, ended up prosecuting the drug war themselves.

Many Democrat voters along with numerous independents had enough of the Democrat’s inaction on the drug issue and turned to ballot initiatives to make marijuana legal in 9 states. Vermont is the only exception to this trend given that it was the first state legislature to legalize marijuana.

On the foreign policy front, Democrats have completely conformed to the D.C. foreign policy status quo. This has been their modus operandi since day one. Historically, Democrats started conflicts such as World War I, World War II, the Korean War, and the Vietnam War. In present times, Democrats are now fuming over Donald Trump’s decision to pull troops of out Syria and begging for conflict with Russia. This is a far cry from the 1960s leftists who protested the Vietnam War and the anti-war Left that was present during the Bush years. When Barack Obama was elected in 2008, the anti-war Left did its best Houdini impression on the war issue.

As is the nature of partisan politics….

In present times, Democrat firebrand Tulsi Gabbard is shaking up the political scene with her announcement to run for president of the United States. Gabbard is receiving all sorts of backlash due to her deviation from the Washington foreign policy consensus and other trivial views she held in the past. Nevertheless, Gabbard’s presence poses a major threat to legacy Democrats. For that reason, the establishment is working tirelessly derail her.

Ruffle Feathers Like Your Life Depends On It

Ruffling feathers is essential for breaking free from the status quo. Playing according to partisan rules is the reason why we have a bloated welfare/warfare state in the first place. It’s time to shake things up a bit.

At the end of the day, grassroots pressure and a willingness to go to war with the political establishment are key. Inertia is the greatest force in politics, and without the external pressure, the status quo of big government persists.

If we are not willing to kill sacred cows in the two-party system, nothing will change.

]]>The Resurgent States of Americahttps://tenthamendmentcenter.com/2019/01/19/the-resurgent-states-of-america/ Sat, 19 Jan 2019 11:11:50 +0000http://tenthamendmentcenter.com/?p=28173The “United States of America” has become a misnomer. In 1776, the words “state” and “nation” were synonyms. The USA could have been named “The United Nations of America,” or the UNA. After pushing the British off their shores, the colonies became independent nations. But they usually called themselves states. The founders’ goal was to […]]]>

The “United States of America” has become a misnomer.

In 1776, the words “state” and “nation” were synonyms. The USA could have been named “The United Nations of America,” or the UNA. After pushing the British off their shores, the colonies became independent nations. But they usually called themselves states. The founders’ goal was to create a federation of these nations — a political cooperative that would have the advantages of a large nation presenting a single face to the world. Their first attempt was the Confederacy under the Articles of Confederation, and each state kept their national sovereignty as they desired.

With the lessons learned from that initial experiment, they wrote the Constitution, intent upon creating a new, permanent republic. The new USA was to be just a short step from the Confederacy, just far enough to give the new national government adequate authority to overcome the shortfalls of that first attempt.

So the Constitution delegated jurisdiction to the US government only in those areas required and it was careful to spell out exactly what that jurisdiction was. Then the first ten amendments were added just to be sure there were clear restrictions on the powers given. For example, the Constitution doesn’t mention land, water, mining, labor, marriage, and gender. To eliminate all doubt, it specifically denied authority over guns and religion in the First and Second Amendments. The states and their political subdivisions were to address all these matters if need be. The question is one of jurisdiction.

The Tenth Amendment, although very clearly stated, is probably the amendment most frequently violated by our federal legislature. It reads thus:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

As a people, we have lost that constitutional vision of our political pioneers, and now “USA” could as well mean “The United Super-Counties of America”.

State Rights Are Sovereign Human Rights

We are born into this wonderful system that was intended to protect our rights. Most of us live and die and vote without understanding how it has protected freedom better than any other system. So we keep asking the federal government to solve more problems and thus to get bigger and bigger. And it is only too happy to comply as bureaucrats build their kingdoms and budgets while assuming more and more jurisdiction. Then we complain that “the government is way too big”. Go figure.

To protect each citizen’s individuality, the Constitution divided the powers of government horizontally (executive, legislative, and judicial) and vertically. The vertical dividers are the Tenth Amendment and the divisions of states, counties, and cities. Addressing issues at the lowest possible level of government was the idea — keep government close to home in the lowest possible jurisdiction. It fits nicely with “Keep your friends close, and your enemies closer” doesn’t it?

The states were to be the primary protectors of our rights at the federal level so they received equal representation in the Senate. Senators gained their office by action of their state governments, not their people. State governments selected them and they served at the pleasure of those state governments.

The Seventeenth Amendment changed all that. With its ratification, Americans elected Senators by popular vote. It effectively converted the Senate into another House of Representatives. Big money knew it would be much easier to line its pockets if they only had to sway public opinion, so they got behind it and made it happen.

The “Delegation of Your Rights” sidebar shows how the amendment transformed the system into a purely democratic process. The Seventeenth Amendment not only removed the control states had upon the federal government, but it also cut off the influence cities and counties as well.

The two houses of representatives (Senate and House) now dictate policy to the states. They have purchased obedience by giving them federal tax revenues in exchange for their submission. There is no sense to any of this unless you are a power consolidator.

It is easy to get lost in the details of this huge, complex thing we call government. But at its core, the only justifiable purpose of government is to protect the citizens’ rights from foreign and domestic threats. Period. The Seventeenth Amendment moved us radically away from a Republic toward pure, pure democracy — a government the founders feared greatly because it devolves into warring camps such as we have now.

So, what can we do?

Up With the Sovereign States

Everyone thinks the federal government has gotten too big. Well, everyone but the power consolidators. The general population thinks so. A 2017 Gallup poll showed that 67 percent view big government as our biggest threat. Here’s a way to restore the republic once envisioned.

The National Governors Association (NGA) is a natural place to start. Here the individual states already counsel together. It is an established forum that could begin to fill the void created by the Seventeenth Amendment. The states have no authority in the federal Congress, but the NGA could function as a confederate Senate until the states regain their full voice there. In fact, they are already speaking louder.

The States Are Coming Back Online

The states have told the U.S. government that they are fed up with its constant violations of the Tenth Amendment. How?

There is a significant rash of states (and even localities) saying, “No! Not in my backyard!” This was exactly the strategy James Madison recommended in Federalist #46. He said when the federal government oversteps its bounds and commits “unwarrantable” acts (or even actions that are just unpopular), the states should “refuse to cooperate with officers of the union”. Jefferson held the same opinion.

The states are not writing U.S. law, but they are asserting their sovereignty through Madison’s nullification method. State legislatures are either ignoring federal mandates or writing laws that countermand them.

The States Say “No”

The recent nullification movement started in 1996 when California voters approved Proposition 215, the Compassionate Use Act, authorizing the possession, cultivation and use of marijuana for limited medical use despite absolute federal prohibition. The federal government has no authority to ban a plant. If you doubt this, ask yourself why it took a constitutional amendment to ban alcohol. But despite federal law, and a Supreme Court opinion supporting it, that single act of California defiance has grown. Today, 33 states have legalized medical marijuana and 10 states have legalized the plant completely. With so many states refusing to enforce federal prohibition, it is unenforcible. This is nullification in practice and effect.

Kicked out of the Senate, the states are recovering their sovereignty the best they can.

How the States Can Regain Their Voice

The NGA, already acting as a confederate US Senate in substantial ways, could use its power of unity and move the states from their present position as rebellious children to equals with the general U.S. population — the U.S. House of Representatives. What could be more natural, and thus easier, than for the states, working through the NGA, to ratify a U.S. Constitutional amendment that undid the Seventeenth.

It could be done by rescinding the Seventeenth, or by rescinding and replacing it with a better idea. Either way, each state should assure that their Senator serves at the pleasure of that state government. Why? So the state represents itself and therefore the rights and powers of the citizens of that state.

This tends to make the individual citizen feel he is losing some of his voice in the US Congress, but the fact is he has already lost that voice. Putting the states back in the Senate actually restores this loss. It makes perfect sense that the state must defend the rights the people have delegated to it. A glance at the Delegation of Your Rights sidebar will confirm these ideas. Just remove the red marks to see the result.

All Hell Will Break Loose

When it comes time for the states to regain their seats in the Senate, all hell will break loose. So what! The state legislatures can band together and pass the amendment whether or not a majority of the general population support it. The power consolidators will raise cain. They have had great success since the states were taken down, and they will not give up the ground they won without a huge blustering, frightening and threatening fusillade of rhetoric and legislative attempts to thwart the creators of the United States from putting themselves back in the position of power they first won in the Constitutional convention so long ago.

The power consolidators will scream. Here are a few of their favorite protests along with simple, powerful answers:

Protest: “You just want to go back to the old, obsolete ways!” Answer: “You agree that the government is too big? Well, we want power returned to the states where it once was. That will take care of it. What’s obsolete about that?”

Protest: “The Seventeenth Amendment was passed because there were too many problems with the way Senators were selected. You want to go back to that?” Answer: “That’s right, there were some problems, but in exchange, we got much bigger problems. Do you want to keep these? Pure democracy always devolves into the warring camps we have in our country today. We want our republic back.”

Protest: “Under the Constitution, Senators were often “bought and sold” by big money people in the states.” Answer: “So, did that get any better?”

Protest: “What about the deadlocks the state legislatures experienced in choosing their senators? Delaware only had one senator for a while.” Answer: “Are you saying the states can’t fix that? Utah had that problem and they fixed it very quickly.”

Protest: “It will completely upset the established procedures in the Senate!” Answer: “Wonderful.”

Protest: “We have spent more than two centuries trying to unify the application of the law for all citizens — to assure that every citizen across our great land has equal protection of the law. When you put the divisive influences of the states back into the Senate, you will undo all the good that has been done. It’s just insane! Answer: I agree that the federal government must treat all citizens with equal protection and equal justice. However, the citizens of the US are very diverse and their wants and needs are also very diverse. For example, in one town, most citizens want to see the ten commandments displayed on a plaque on the courthouse lawn, while in another town the majority would rather not see that there. So why not let each town decide what will be on their courthouse lawn?

The founders wanted every issue to be administered at the lowest possible jurisdiction. This is a true and correct celebration of diversity. Letting state governments represent their counties and cities in Congress can achieve that. You will see that a restored Senate will gradually move the federal government out of state and local issues.

]]>The Government Shutdown Exposes Another Reason to Abolish the TSAhttps://tenthamendmentcenter.com/2019/01/17/the-government-shutdown-exposes-another-reason-to-abolish-the-tsa/ Thu, 17 Jan 2019 11:01:31 +0000http://tenthamendmentcenter.com/?p=28203the whole affair reminds us of just one of the many pitfalls that come with federalizing airport security and making it all part of one giant, nationwide federal bureaucracy.]]>

The Transportation Security Administration, a federal agency, is facing a no-show problem with employees, as paychecks are put on hold during the partial government shutdown.

This is reportedly leading to longer lines and security problems at airports nationwide. According to CNN:

Hundreds of Transportation Security Administration officers, who are required to work without paychecks through the partial government shutdown, have called out from work this week from at least four major airports…

TSA spokespeople, meanwhile, insist everything is completely normal although absenteeism has “increased by 200% to 300%,” according to Marketwatch.

Not everyone was as sanguine about the situation as government officials. One frequent traveler complained “The lines were exceptionally longer than normal, especially for a peak departure time frame of 8 a.m. to 12:30 p.m.”

Given that the feds admit more employees are skipping work, it’s hard to believe that everything’s humming along normally — unless workers are lowering security standards to get more people through the line quickly.

But, that, of course, is something the feds insist they would never, ever do.

In any case, the whole affair reminds us of just one of the many pitfalls that come with federalizing airport security and making it all part of one giant, nationwide federal bureaucracy.

But even if the Trump Administration were to get its wish, the TSA would still remain a federal agency with federal employees, and a substantial of its budget would still come from federal appropriations.

In other words, the next time there’s a government shutdown, we’d be looking, yet again, at a situation in which the entire nationwide system of airports would be affected because a tiny number of politicians in DC couldn’t agree on a nationwide budget.

It doesn’t have to be this way. Nor were things this way prior to the federalization of airport security in the wake of the 9/11 terrorist attacks.

Thanks to the George W. Bush Administration, airport security was federalized only two months after 9/11, with Bush proudly declaring at the time: “For the first time, airport security will become a direct, federal responsibility.”There were federal regulations in place dictating how security was conducted, of course, but the employees and the funding were largely decentralized in how they were distributed and used.

As a result, a federal shutdown under a system like this does not mean that the employees won’t get paid or that “non-essential” personnel are simply sent home.

The TSA Doesn’t Keep Us Safe

In response, supporters of the status quo are likely to respond that the TSA “keeps us safe” and only a federalized version of airport security can work.

Unfortunately, for them, there is no evidence to support this position.

First of all, that there has been no serious and successful terrorist hijacking since 9/11 does not prove the effectiveness of the TSA. After all, the creation of the TSA is just one change since 9/11.

Indeed, 9/11-style hijackings were obsolete by the afternoon of September 11, 2001. Their success rested largely on the fact that the airline industry and FAA regulators adhered to a policy of compliance when it came to hijackers. As a report from Stratfor notes:

Before 9/11, aircraft crews were trained not to resist hijackers but to comply with their instructions in an effort to calm the situation and land the plane. Once the aircraft was on the ground, hijackers would then either surrender or be killed by an aircraft entry team. The Federal Aviation Administration never dreamed that terrorists would commandeer an aircraft with the intent to use it as a weapon. Aware of this, the 9/11 attackers simply had to pretend to be typical hijackers to gain the crews’ cooperation and take control of the aircrafts.

A compliance policy will never be used again:

But the advantage Mohammed [Atta] gained by shifting the hijacking paradigm was short-lived, as evidenced by the events that unfolded that morning aboard the fourth aircraft: United Airlines Flight 93.

The attackers who targeted the plane did not account for the fact that its passengers and crew were able to use their cellphones to talk to people on the ground. When they learned what had happened to the three other aircraft, they revolted and forced the hijackers to crash the plane before it could be used to target the U.S. Capitol.

In other words, a major reason that there haven’t been any 9/11-type hijackings since 9/11 is that terrorists know people will react in a completely different way to a potential hijacking.

In the case of Flight 93, the hijackers only got as far as they did because the crew and passengers initiallycomplied. Once the truth was learned, the situation changed dramatically. Now that 9/11 is common knowledge, not even initial compliance could be expected from terrorists.

Other factors include the placement of air marshals on some planes, and better security for cockpits.

The maintenance of an an enormous corps of federally employed TSA employees has nothing to do with any of these factors.

And then there is the research which shows that the TSA has a 95-percent failure rate in detecting efforts by terrorists to place weapons on commercial flights. Dylan Matthews wrote at Vox in 2016:

The TSA is hard to evaluate largely because it’s attempting to solve a non-problem. Despite some very notable cases, airplane hijackings and bombings are quite rare. There aren’t that many attempts, and there are even fewer successes. That makes it hard to judge if the TSA is working properly — if no one tries to do a liquid-based attack, then we don’t know if the 3-ounce liquid rule prevents such attacks.

So Homeland Security officials looking to evaluate the agency had a clever idea: They pretended to be terrorists, and tried to smuggle guns and bombs onto planes 70 different times. And 67 of those times, the Red Team succeeded. Their weapons and bombs were not confiscated, despite the TSA’s lengthy screening process. That’s a success rate of more than 95 percent.

Defenders of the TSA — much like defenders of the CIA and other “security” organizations — claim that the TSA surely succeeds in stopping terrorists quite often. Those successes, however, are secret and we can’t know about them.

This sort of faith-based trust in government might be convincing for some, but it ought to strike most people capable of critical thinking as nonsensical.

The fact remains — if we exclude the hypothetical “secret files of amazing successes” maintained by government agencies — there is no empirical evidence that the TSA prevents terrorism, and even in theory, we can easily point to other factors that are much more important in the prevention of another 9/11.

On the other hand, the federalization of airport security does create a situation in which national politics can easily create a system-wide failure in airport security that would not be possible in a system without the centralization of the TSA system.

For more, see page 20 of the TSA’s budget documents: https://www.dhs.gov/sites/default/files/publications/TSA%20FY18%20Budget.pdf

]]>Problems with Excessive Federal Land Ownershiphttps://tenthamendmentcenter.com/2019/01/15/problems-with-excessive-federal-land-ownership/ Tue, 15 Jan 2019 10:43:08 +0000http://tenthamendmentcenter.com/?p=28196Ryan Zinke’s departure as interior secretary offers President Trump a chance to replace him with an appointee committed to a step long overdue: disposing of dysfunctional and unconstitutional federal land holdings. The federal government is by far the nation’s largest landlord, holding title to nearly 30 percent of the territory of the United States. As […]]]>

Ryan Zinke’s departure as interior secretary offers President Trump a chance to replace him with an appointee committed to a step long overdue: disposing of dysfunctional and unconstitutional federal land holdings.

The federal government is by far the nation’s largest landlord, holding title to nearly 30 percent of the territory of the United States. As explained below, there is no constitutional justification for most of this ownership — and little real policy justification. On the contrary, excessive government land ownership has damaged the Constitution’s federal balance, harmed the environment and the economy, embittered millions of decent American citizens, and fed ruthless special interest groups.

The symptoms of the disease are most visible in Western states, whose territory is largely owned by federal agencies and where a broad-based movement favors trimming the bloated federal portfolio. However, the symptoms affect the rest of the country as well.

Secretary Zinke has tried to ease some of the symptoms, but his refusal to consider land disposal has prevented him from getting at the underlying malady.

Here are some of the reasons excessive federal real estate ownership is problematic.

First: It is unconstitutional. Although the Supreme Court has avoided squarely addressing the issue, the fact is that the Constitution lodges no power in the federal government to retain land indefinitely for any purpose the government chooses. The Constitution does give Congress an unqualified power to dispose of property (and regulate property already held). But it authorizes Congress to acquire and hold land only for certain listed purposes.

Indeed, when America’s founders were advocating adoption of the Constitution, one of their most frequent assurances was that the states would control the territory within their own borders.

Second: Huge landholdings in Western states allow federal politicians and bureaucrats to manipulate the internal politics of those states. For example, U.S. Senate elections that should center on national issues all too often are influenced by federal decisions on such matters as local timber cuts.

Third: Federal ownership has caused massive environmental damage. One way for Easterners to begin to understand this is to think about all the uncontrolled Western wildfires they have seen on the evening news. Many are due to federal land “management.” Federal land management is buffeted by lawsuits and shifting political winds, hampered by under-investment, and characterized by financial deficits from activities that should produce surpluses.

Fourth: Federal land ownership damages the economy. Several studies show that the federal agencies manage land unproductively even compared to management by state agencies. Claims by interest groups that federal lands help the economy are sheer nonsense, often based on counting the purported benefits of federal activity while ignoring the costs. The fact is that real estate socialism doesn’t work any better than most other kinds of socialism.

Fifth: The federal government can be a lousy neighbor, not honoring basic obligations expected of other landowners. The feds often don’t cull their forests to prevent fire. They light fires that get out of control. They harbor and fail to contain dangerous animals. Not surprisingly, land conflicts have led to bitterness throughout the West.

Sixth: As if all this were not enough, federal land ownership feeds unscrupulous interest groups, just as other government programs do. Special interest groups waste time and resources lobbying Congress, pressuring the bureaucracies, bringing lawsuits, and misleading the public (“Stop them from cutting down the trees — Send us money!”). This activity is pure deadweight loss to society. It fact, it is worse than dead weight, because it sows distrust, fear, and hatred.

How should we reduce federal ownership? We need a national conversation on this issue, and the next interior secretary should lead that conversation. There are many options. Among them are (1) transferring environmentally-sensitive land and parks into perpetual trusts, subject to tight restrictions on use (as in Britain), (2) transferring other parcels, such as national recreation areas, to state governments, and (3) free-market sales of parcels that have only economic value.

President Trump should appoint an interior secretary willing to discuss and consider options like these.

]]>Natural Rights: The Cornerstone of the Constitutionhttps://tenthamendmentcenter.com/2019/01/13/natural-rights-the-cornerstone-of-the-constitution/ Sun, 13 Jan 2019 14:28:10 +0000http://tenthamendmentcenter.com/?p=28195The cornerstone of the U. S. Constitution depends on the proper understanding of Natural Rights belonging to every human being. The U.S. government is the first and only one in history to be founded on Natural Law. Even though nothing is mentioned in the Constitution about Natural Law, the document sometimes referred to as the […]]]>

The cornerstone of the U. S. Constitution depends on the proper understanding of Natural Rights belonging to every human being.

The U.S. government is the first and only one in history to be founded on Natural Law. Even though nothing is mentioned in the Constitution about Natural Law, the document sometimes referred to as the “spirit” of the Constitution does.

Look at the following passage from the Declaration of Independence:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to affect their Safety and Happiness.”

There are five “truths” contained in that quote that you must know to understand why the founders wrote the Constitution the way they did.

First Truth: All men are created equal.

What the Founding Fathers meant by equality is this: All men share a common human nature. The assertion that all men are created equal means that all persons are the same in some respect.

Second Truth: Our rights come from God.

If you believe in God you get this, but even those who don’t believe in God must believe that your rights come from something greater than man or government. Our rights pre-date the Constitution.

Third Truth: The purpose of government is to protect our Natural Rights (life, liberty and property).

The Founder’s wanted the new government’s power to be strictly limited. They understood that as government expands liberty contracts.

In Federalist Paper #14 James Madison said:

“It is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects.”

Fourth Truth: Government derives its power from the People.

The federal government did not create itself, so the people, whose creature it is, must always ensure it stays within its proper bounds.

Fifth Truth: When government stops fulfilling its proper role, people have the right, no, the duty, to change or alter the government to meet their needs.

The founders believed it was the State’s responsibility to keep the federal government in check.

To truly understand why the Constitution was written the way it is, you have to understand Natural Law. Then when you read the seven Articles of the Constitution, the fact is that it isn’t about “We the People”, but the organization, powers and operation of the federal government it created, makes sense.

That is why we started Building Blocks For Liberty (BBFL). BBFL is a 501c3 organization, dedicated to educating the public about the US Constitution. BBFL’s Constitution Boot Camp training is apolitical and teaches the key concepts and ideas about the Founding Fathers, Natural Law, Republic versus Democracy, the three branches of government, enumerated powers and much more.

Unlike other Constitution training, BBFL’s classes are presented in one day (why we call it a Boot Camp). To achieve this, BBFL uses one of two teaching methods. The first is an instructor-led PowerPoint class where instructors teach the entire class. The second, developed to reach a broader audience, is a video method that uses a thumb drive. Class leaders simply plug into a USB port and click on play. Participant’s next use our textbook, The Handbook For We The People, to complete their basic Constitutional education. At the end of the class, participants will be equipped with the tools and the knowledge to read and understand the U.S. Constitution for themselves. For more information, visit BBFL’s website HERE.

My inbox is being inundated with the question de jure: “If President Trump declares a ‘State of Emergency’ to build the wall on the border of Mexico, is that Constitutional?”

I am certain that is not the right question or perhaps not the right way to ask it, but to ask it and answer it correctly, let’s briefly remind ourselves of America’s Constitutional structure and function.

A Reminder

The Constitution of the United States defines the powers for the three branches of federal government. Each of these branches is delegated specific, enumerated powers that are not only limited and defined by the Constitution but also separate and distinct in their delegations. The branches of government do not share powers unless that specific cooperation is ascribed by the Constitution. For example, the power to create treaties (today referred to with the obfuscatory label – “deals”) is not an autonomous power belonging to the president but one that requires specific concurrence by the Senate.

Recall that the Tenth Amendment declares that any power not delegated through the Constitution remains in the hands of the States. This is the opposite of Teddy Roosevelt’s “stewardship” doctrine that says the feds can do whatever they want as long as the Constitution doesn’t say they can’t. Federal Supremacists love this perspective. That was NOT the discussion or conclusion of the ratification debates. There are no unnamed powers floating in the ether waiting to be snatched up by the central government.

Roosevelt’s Secretary of War William Taft rightly conveyed the framers’ positions, “a specific grant must be either in the Federal Constitution or in an act of Congress passed in pursuance thereof. There is no undefined residuum of power which (the federal government) can exercise because it seems…to be in the public interest…”

The specific delegations of power, as well as NON-delegations, were created thoughtfully, deliberately, with knowledge of history and human nature. The limitations of those powers involved considerable debate and study into past history and ancient governments.

Patrick Henry said in his famous “Give Me Liberty or Give Me Death” speech:

“I have but one lamp by which my feet are guided; and that is the lamp of experience. I know of no way of judging of the future but by the past.”

Alexander Hamilton wrote in Federalist #20: “Experience is the oracle of truth…”

However, it is not uncommon in the evolution of the American Republic to see the government AND the citizenry cast off the wisdom and experience enshrined in the founding documents to address some “urgent necessity.” Instead of taking the intentionally cumbersome path to do it right, Americans willingly run roughshod over Constitutional barriers because – “we have to get this done ,” or “there is no other way to do it!” These instances have slowly transmuted the Republic into the nearly limitless federal behemoth we know today.

We would be well-served to paste a banner over our televisions and computers reminding us of what William Pitt said in 1783:

“Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.”

The Question

So when people ask questions like “Can the president do…?” “Can the House do… Can the Senate do…, or Can the Supreme Court do…?” the first sources that must be consulted are the Constitution and the people who drafted it. If the Constitution provides no authority for the activity, then the power does not Constitutionally reside in the hands the federal government.

So, more to the root of the question being asked, “Does the Constitution enumerate a power to the President to declare a state of emergency?”

The short answer is No.

Every state of emergency refers to the National Emergencies Acts as the source of its authority. So the real question is “Does the Constitution authorize Congress to alter (expand or contract) executive power by legislative act?”

The constitutional answer to this question is obviously no.

Congress cannot add powers that the Constitution has not delegated to the president nor can they take away powers that have been delegated. For Congress to have the authority to add power to the executive branch, they would have to possess the authority to actually amend the Constitution by congressional act, and they do not.

Additionally, for Congress to delegate a power to the executive branch that has been constitutionally delegated to Congress, is a per se violation of the Constitution by crushing the principle of Separation of Powers. James Madison, quoting political philosopher Montesquieu, was very direct with his words regarding separation of powers:

“There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates…” Federalist #47

Spending, war, appropriations, national defense, and naturalization are all powers specifically delegated to Congress. For Congress to abdicate its power to the executive branch is not only not authorized by the Constitution, it is necessarily forbidden by the principle of Separation of Powers to ensure the security of the Liberty of the people. Shockingly, this debate over states of emergency has raged for decades and nobody seems to offer the obvious correct answer – if we want the President to have such powers we must amend the Constitution.

Yet if you consider how far we have strayed and how long we have been off the path, President Trump is doing nothing out of the ordinary, he is following a long history of extra-Constitutional (aka unconstitutional) action. We have just accepted a broken government as the norm since at least 1861 when it comes to “national emergencies.”

How did we get here?

If you tell a lie long enough, people believe it to be truth and the lie of expanded executive power has a long history. I think this principle is even more powerful when that lie comes from someone you like, or applies to a situation you happen to agree with. But that lie can only operate as truth with very dire consequences, the most obvious consequence would be that the lie operates as truth not only for the people you like but also the people you don’t like.

Some claim expansion of executive power began with the George Washington administration’s response to the whiskey rebellion. Yet in this instance, Congress authorized Washington to quell an “insurrection” which falls within the constitutional authority of both Congress and President. It was Congress that then began creating “stand-by laws” to give the President powers beyond the grant of the Constitution in time of “national emergency.” They should have proposed a Constitutional amendment, not passed a law. (Interestingly, Washington later pardoned everyone who was arrested during the rebelling, if they were not already acquitted.)

The first unilateral act of a president arose when Lincoln blockaded American ports and expanded military forces without Congress. The Congress and the courts eventually went along and this became the confirmation and justification of the President’s emergency power. Woodrow Wilson and FDR faced similar emergency power controversies and were not thwarted by Congress. In 1917, President Woodrow Wilson started the “Presidential Proclamation” that triggered the availability of all so-called stand-by laws for these declarations of emergency.

The process came to a head when, after Truman proclaimed an emergency in response to Korean hostilities, the same order was used to wage war in Vietnam 22 years later. Congress, led by Senator Church, launched an investigation. One of numerous Congressional studies in 1973 showed that the Congress had already passed over 470 statutes granting the President “EXTRAORDINARY POWERS” during a time of emergency. In an attempt to restrain and proceduralize the use of emergency powers, perhaps restrain the monster they allowed to grow, Congress passed the National Emergencies Act on in September of 1976.

In light of the fact that Congress is not authorized through Congressional act to expand delegated authority, consider these two points from two constitutional delegates:

“There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid.” Federalist #78- Alexander Hamilton

“…the power of the Constitution predominates. Any thing (sic), therefore, that shall be enacted by Congress contrary thereto, will not have the force of law.” James Wilson, Pennsylvania Ratifying Convention 1787

The Constitution, as well, is not silent on this issue. Article 6 clause 2 codifies the principles laid down by the above drafters of the Constitution when it says:

“This Constitution, and the Laws of the United States which shall be made in pursuance thereof; …shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Every law must be made, every federal action must be taken, “in pursuance” to the Constitution. If that act is not specifically authorized by the Constitution, then the “Judges in every State” are NOT bound thereby. What that means is the “National Emergencies Act,” “War Powers Act,” 8 US 1182- empowering the president to determine the admissibility of aliens, and many, many others are all unconstitutional delegations of power by Congress to the president. Which makes them, by the terms of the Constitution AND the drafters of that document, null and void.

Where do we go from here?

So the question is NOT: “If the President declares a national emergency and builds the wall, is that Constitutional?” That’s an easy question to answer, No. The question is “Will we keep pretending to live in a Constitutional Republic, while making it up as we go along?”

Other than electing a Congress that actually cares for the security, safety and integrity of the nation, there are two simple options: Amend the Constitution and have the states give the president this authority or stop pretending, get rid of the Constitution and go back to monarchy.

]]>Common Sense: A Concise Defense of the Patriot Causehttps://tenthamendmentcenter.com/2019/01/10/common-sense-a-concise-defense-of-the-patriot-cause/ Thu, 10 Jan 2019 18:00:25 +0000http://tenthamendmentcenter.com/?p=28189Today in 1776, Thomas Paine anonymously published a pamphlet called “Common Sense.” It was a concise defense of the patriot cause. After emigrating from England two years prior with the assistance of Benjamin Franklin, Paine became one of the most ardent and famous supporters of the colonial struggle against Britain. Though it is hard to […]]]>

Today in 1776, Thomas Paine anonymously published a pamphlet called “Common Sense.” It was a concise defense of the patriot cause.

After emigrating from England two years prior with the assistance of Benjamin Franklin, Paine became one of the most ardent and famous supporters of the colonial struggle against Britain. Though it is hard to determine exactly how many copies were printed and disseminated, thousands of copies found their ways into the hands of patriots.

Within the tract, Paine explained that he was “not induced by motives of pride, party, or resentment to espouse the doctrine of separation and independence.” He professed, however, to be “clearly, positively, and conscientiously persuaded that it is the true interest of this continent to be so.”

In just 48 pages, “Common Sense” made the following arguments:

That many traditional rights were naturally bestowed, and preexisted government.

That legitimate government depends on the consent of the governed, and that governmental establishments were based on contractual relationships between individuals.

That the incendiary British policy toward the colonies had violated the colonial charters and the British constitutional system itself.

That the American colonies could not be reasonably represented in British Parliament, nor could any empire judiciously govern the American colonies.

That the British claim to the right to bind the colonies “in all cases whatsoever” and to supplant the will of the colonial legislatures was contemptuous, malignant, and unauthoritative.

That the British royal line derived from a bastard foreigner who gained power only through military prowess and a successful invasion of the British Isles in 1066.

That a free people could withdraw from an illegitimate government, as such a government ceased to possess the ability to demand compliance.

His blunt, straightforward style resonated strongly with common people, making his work an immediate success. Though some, including Thomas Jefferson, James Otis, and James Iredell, had all articulated similar ideas in the years prior, many of their arguments were coated in legalese and historical references that were unfamiliar to typical colonists. It was Paine’s work therefore that struck the greatest chord with the everyday American.

Paine’s newfound fame made him a leading patriot agitator. He continued this streak the next year in “The American Crisis,” an attempt to encourage the masses to support the war against Britain. The pamphlet was read aloud to the army three days before the Battle of Trenton, one of Washington’s greatest victories. Some allege that Paine’s work served as a substantive boost of morale during a trying time.

Paine remained a controversial figure for the rest of his life. He later served in the French National Assembly during the French Revolution, was almost beheaded in the Great Terror, was tried and convicted of seditious libel in absentia in Britain, and strongly criticized George Washington.

He died virtually friendless in New York following the publication of his controversial work, the Age of Reason. Still, the deed he achieved the most fame and prestige for, was, without a doubt, his authorship of the widely-distributed pamphlet that made the most prevalent case for severance from the British crown.

]]>Can the President Alone Build a Border Wall?https://tenthamendmentcenter.com/2019/01/09/can-the-president-alone-build-a-border-wall/ Wed, 09 Jan 2019 22:46:44 +0000http://tenthamendmentcenter.com/?p=28186When Donald Trump was looking for a catchy phrase during his 2016 presidential campaign to address the issue of immigrants entering the United States unlawfully — a line that would resonate with his supporters — he came up with the phrase “build the wall.” The reference, of course, is to what Trump advertised would be […]]]>

When Donald Trump was looking for a catchy phrase during his 2016 presidential campaign to address the issue of immigrants entering the United States unlawfully — a line that would resonate with his supporters — he came up with the phrase “build the wall.” The reference, of course, is to what Trump advertised would be a 30-foot-tall, thousand-mile-long Mexico-financed physical wall along our border with Mexico.

At first, most folks seemed to dismiss this a pie in the sky. Why would the government of a foreign country pay for a wall in the United States built so as to keep its own citizens and residents from entering the United States? The answer: It wouldn’t.

So President Trump changed his argument that Mexico would pay directly for his wall by arguing instead that the $5.7 billion down payment he wants — on a $25 billion to $30 billion project — would indirectly pay for itself in reduced government welfare and law enforcement expenses. The idea of the wall never took hold during the first two years of his presidency, when the Republicans controlled both houses of Congress.

Even Republicans were leery of the cost and the imagery. The federal government is running about $1 trillion a year in the red, and Republicans are looking to offer comfort in their party to Hispanics. Adding to that debt to build a wall that would affront other Hispanics did not rest well with them. Until now.

Now that the Democrats control the House of Representatives, where the idea of a wall is dead on arrival, it is easier for House Republicans to argue in favor of it. Because the Democrats numerically outnumber them, the House Republicans won’t be forced to vote on it. The president is probably kicking himself for not calling in a few favors and addressing the wall before the Democrats took control of the House.

So, faced with intractable opposition in the House and only lukewarm, mainly symbolic support in the Senate, Trump has threatened to bypass Congress, declare a national state of emergency and build the wall on his own. Can he legally do this? In a word: No.

Here is the back story.

The Constitution is the supreme law of the land. Everyone who works in government takes a public oath of fidelity to the Constitution; that means to its very words and to the values that those words represent. All federal powers come from the Constitution — and from no other source. The states formed the federal government and limited its powers when they ratified the Constitution. These are all basic truisms of American government, yet we have veered so far from them that they bear repeating.

Now, back to the president’s wall. President Trump has no power to build a wall or a fence or a doghouse on private property without an express or implied congressional authorization to do so. The vast majority of the property in Texas on which he wants to build is private, according to Rep. Will Hurd, R-Texas, whose district contains a longer stretch of the border than anyone else’s.

Thus, the federal government must use eminent domain, which gives each landowner the right to a trial to challenge the government as to the worth of the property the government wants. Rep. Hurd, a former CIA agent and conservative Republican who opposes the wall, has articulated the views of most of his 800,000 constituents: Not in my backyard.

We know from the plain wording of the Constitution and from history that all expenditures of money from the federal treasury and all federal use of private property must first be approved by Congress. In 1952, the Supreme Court ruled on this when President Harry Truman seized American steel mills during a labor strike and directed the secretary of commerce to hire folks to operate the mills, pursuant to his own emergency declaration that steel was vital to the war effort in Korea. The court held that only Congress could authorize the seizure or adverse government occupancy of private property and the expenditure of money needed to operate the mills.

Then, in 1976, Congress provided a definition — which, shortly thereafter, the courts refined — of a national emergency: the existence of events truly beyond the ordinary, wherein there is a palpable and immediate threat to lives, safety or property that cannot be addressed by the employment of ordinary government assets or the exercise of ordinary governmental powers. That is hardly the case today with the former Central American caravan in Mexico now settled in and housed by the Mexican government away from the border.

Nevertheless, the 1976 law requires that all ordinary assets — our president prefers the military — be determined useless before a lawful emergency can come into effect. The military useless in an emergency? And if this is such an emergency, why did the president wait until it abated before addressing it?

Perhaps the answer is that his frustration with the Democratic House has reached a boiling point, but that boiling point cannot be a basis for a declaration of a national emergency. A valid emergency declaration streamlines the government to address the emergency, but it cannot authorize anything that the Constitution prohibits, nor can it authorize the president to avoid anything that the Constitution requires.

The president has sworn not only fidelity to the Constitution but also to take care that federal laws be enforced. If he could disregard that oath, if he could ignore those laws, if he could spend money not authorized by Congress, if he could occupy private property not subject to eminent domain against the will of the owners — in short, if he could make the laws, as well as enforce them, then he would not be a president. He’d be a monarch.

]]>Government Thrives by Keeping People Blind to Its True Costshttps://tenthamendmentcenter.com/2019/01/08/government-thrives-by-keeping-people-blind-to-its-true-costs/ Tue, 08 Jan 2019 11:36:47 +0000http://tenthamendmentcenter.com/?p=28184In the face of ubiquitous political efforts to selectively blind people in order to sell what they shouldn’t buy, it makes sense to consider ways to better blinder-proof ourselves]]>

by Gary M. Galles

Ever wonder why people put blinders on horses? As prey animals, horses have eyes on the sides of their heads to increase their ability to detect and escape predators (who have forward-focused eyes for targeting prey). But that also means horses can be quite distractible by things occurring in their peripheral vision. Consequently, when people want horses to better focus on a particular task, blinders can reduce distractions and make horses more productive.

However, there is no positive parallel for humans. Putting blinders on people, as often attempted by those trying to “sell” public policies, does not help people more successfully attain their goals. Such blinders do the opposite. They increase the likelihood that people will be preyed on. The reason for the difference is that blinders are put on horses to make them more productive when the threat from predators has been controlled, but when public policy is involved, individuals are surrounded by political predators.

In the face of ubiquitous political efforts to selectively blind people in order to sell what they shouldn’t buy, it makes sense to consider ways to better blinder-proof ourselves. And knowing basic economic principles is one major way.

Every Choice Has a Cost

Economics arises from scarcity as a universal fact of life, which means having more of one thing I want means giving up other things I also want. That means, as Thomas Sowell put it, “There are no solutions. There are only tradeoffs.” So someone promising solutions while overlooking the tradeoffs is selling snake oil.

One of the implications of scarcity is that “There ain’t no such thing as a free lunch.” Every choice has a cost. That means that every promised government free lunch is really a lunch stolen from someone else. And every time they treat resources as free (e.g., ignoring the cost of something the government already owns because there is no added explicit cost, even though there is the foregone opportunity of using it for other purposes or sold to others), they are really hiding costs. But pitchmen don’t want you to notice.

Since government has no resources of its own, for government to spend money, it must also raise those resources from those they supposedly serve. So one cannot just analyze the consequences of government spending as if other things will be equal because they cannot be. One must also analyze how government acquired the resources and the consequences (including the costs to society from the distortions created by taxes, in addition to their direct cost).

If spending is to be deficit-financed, that doesn’t reduce the cost. It just moves it to the less-easily-recognized future because borrowing is, in essence, a government commitment to higher future taxes to make its promises good. And if government uses inflation to make it possible, it just changes the form in which citizens will be taxed. Ignoring such liens on citizens’ futures is blinding people to what must be recognized for accurate analysis.

Distorting Political Realities

Policy changes also cannot change just one incentive “story.” There are multiple margins of choice at which programs change people’s incentives. So when political pitchmen treat policies as single-issue, they are always omitting important parts of the story.

Further, your responses to changed incentives will change others’ incentives and behavior, as well, so a policy presented as “all about you” is always incomplete. And you can’t look only at what happens at first because some responses take longer than others to fully develop.

What Friedrich Hayek termed “weasel words” are also used as blinders to necessary policy considerations. “We” pay for Social Security and “we” get the benefits, but it has transferred trillions of dollars from the young to the old. “Need” is used to imply someone shouldn’t have to pay for something, sidestepping how A’s supposed need justifies taking B’s resources without their consent. “Fair” is applied to one group, keeping people from seeing that fixing any such inequity requires unfairness to others.

Putting blinders on horses can make them more successful at their intended tasks. But putting blinders on people for political decisions does the opposite. It makes them less successful in achieving their desires but makes government-enabled predators more successful. So when you see a political predator coming, bearing blinders to basic economic truths, run for your life, liberty, and happiness.

Gary M. Galles is a professor of economics at Pepperdine University. His recent books include Faulty Premises, Faulty Policies (2014) and Apostle of Peace (2013). He is a member of the FEE Faculty Network.

]]>Report on the State of the Nullification Movementhttps://tenthamendmentcenter.com/2019/01/06/report-on-the-state-of-the-nullification-movement/ Sun, 06 Jan 2019 08:23:41 +0000http://tenthamendmentcenter.com/?p=28178It’s one thing to have lofty goals. Achieving them takes more than strong rhetoric. You have to have a solid, actionable strategy. In response to the hated Alien and Sedition Acts, Thomas Jefferson used the Kentucky and Virginia Resolutions of 1798 to lay out the principles of nullification. But the resolutions themselves did not nullify […]]]>

It’s one thing to have lofty goals. Achieving them takes more than strong rhetoric. You have to have a solid, actionable strategy.

In response to the hated Alien and Sedition Acts, Thomas Jefferson used the Kentucky and Virginia Resolutions of 1798 to lay out the principles of nullification. But the resolutions themselves did not nullify the Alien and Sedition Acts. Instead, Jefferson and Madison first created a framework for future action.

On November 17, 1798, one week after passage of the Kentucky Resolutions, Thomas Jefferson sent a draft to James Madison, along with a letter. He wrote:

“I inclose you a copy of the draught of the Kentucky resolves. I think we should distinctly affirm all the important principles they contain, so as to hold to that ground in the future, and leave the matter in such a train as that we may not be committed absolutely to push the matter to extremities, & yet may be free to push as far as events will render prudent.”

Jefferson and Madison stated their principles, justified their actions, and then left the door open to proceed with a practical strategy they could adapt as circumstances evolved.

At the TAC, we try to follow this blueprint. We always keep the ultimate goal in front of us, but we act strategically when and how specific situations allow. It’s a balancing act – always keeping in mind that you don’t achieve radical change by abandoning radical principles.

William Lloyd Garrison took a similar tack in his battle against slavery in the U.S.

Garrison ranks as one of the greatest abolitionists in American history, and he understood this strategy too. He steadfastly stuck by his call for absolute and immediate emancipation of all slaves.

While it seems absurd to our 21st-century sensibilities, total abolition of slavery was an idealistic, radical, extremist position in the mid-1800s. Principled abolitionists were generally reviled, even in the North. The broader abolitionist movement was dominated by pragmatists content with modest policy changes here and there. A lot of them were merely jockeying for political power.

Garrison would have none of this. He believed slavery should end immediately, and he constantly said so. He wasn’t concerned about winning a popularity contest or convincing people he was properly mainstream. He unapologetically wore a badge of radicalism. He unwaveringly pursued the ideal.

But Garrison wasn’t just running around like a proverbial bull in a china shop. He had pragmatic reasons for maintaining his hard-core stance. He recognized that by pushing for the ultimate goal he was more likely to reach it.

“Urge immediate abolition as earnestly as we may, it will, alas! be gradual abolition in the end. We have never said that slavery would be overthrown by a single blow; that it ought to be, we shall always contend.”

Garrison understood that if he started by seeking half-measures, he would never end up with anything more than half-measures. He warned, “Gradualism in theory is perpetuity in practice.”

Economist and political philosopher Murray Rothbard put it this way in A Case for Radical Idealism:

“William Lloyd Garrison was not being ‘unrealistic’ when in the 1830s he first raised the glorious standard of immediate emancipation of the slaves. His goal was the morally proper one, and his strategic realism came in the fact that he did not expect his goal to be quickly reached …

Gradualism in theory indeed undercuts the goal itself by conceding that it must take second or third place to other non- or antilibertarian considerations. For a preference for gradualism implies that these other considerations are more important than liberty.”

At the TAC, we always keep the Constitution and liberty as our core objective. But we also recognize that it will take a series of small victories to reach our ultimate goal.

We’ll never abandon our radical idealism. But we will always work strategically, step-by-step, to achieve those objectives.

]]>How One State Helped Desegregate the U.S. Militaryhttps://tenthamendmentcenter.com/2019/01/04/how-one-state-helped-desegregate-the-u-s-military/ Fri, 04 Jan 2019 12:44:19 +0000http://tenthamendmentcenter.com/?p=28172On July 26, 1948, President Truman issued Executive Order 9981 abolishing discrimination “on the basis of race, color, religion or national origin” in the United States Armed Forces. This action eventually resulted in the desegregation of the United States military. Historians praise Truman for his foresight but generally ignore that state action that preceded and […]]]>

On July 26, 1948, President Truman issued Executive Order 9981 abolishing discrimination “on the basis of race, color, religion or national origin” in the United States Armed Forces. This action eventually resulted in the desegregation of the United States military. Historians praise Truman for his foresight but generally ignore that state action that preceded and drove this change.

EO9981 reads:

It is hereby declared to be the policy of the President that there shall be equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion or national origin. This policy shall be put into effect as rapidly as possible, having due regard to the time required to effectuate any necessary changes without impairing efficiency or morale.

African-Americans, Hispanic-Americans, Native Americans, and Asian-Americans, had already made incredible contributions to the United States military prior to 1948. The general public has become increasingly aware of these achievements through popular films such as “The Tuskegee Airmen.” Likewise, Americans are becoming familiar with the history of the Navajo Code Talkers, the Nisei 442nd Regimental Combat Team, and the 65th Infantry “Borinqueneers.” Regardless of one’s views about America’s foreign policy, the United States Military is an organization where people of any background can be judged by their individual merits.

Much modern scholarship has celebrated the role of this “stroke of the pen” executive order in contrast with the more gradual pace of legislative and judicial action. Other scholars have focused on the role of civil rights groups such as the League for Non-Violent Civil Disobedience Against Military Segregation.

What is truly remarkable is the extent to which historians have ignored the real story surrounding the events leading up to Executive Order 9981. It is a story that does not fit comfortably within the traditional narrative about the Tenth Amendment as an ally of Jim Crow. Much like when the Northern States used nullification to reject Fugitive Slave Laws prior to the Civil War, this forgotten historical drama illustrates how States can use the Tenth Amendment to fight federally-mandated racism. This forgotten story does not begin in the South, the Supreme Court, or the White House; it begins in the armories of the New Jersey Army National Guard.

In 1947 New Jersey approved a new Constitution which included the following language:

“No qualified person shall be denied any civil or military right, nor be discriminated against in exercise of any civil or military right, nor be segregated in the militia or in the public schools because of religious principles, race, color, ancestry or national origin.”

The federal National Guard Bureau had recently organized a new unit in New Jersey, the 372nd Anti-Aircraft Artillery group entirely of black soldiers. Clearly, this new unit was illegal under the New Jersey Constitution.

The New Jersey Military Affairs Committee, New Jersey Governor Alfred E. Driscoll, as well as the commanding and adjutant generals of the New Jersey National Guard all pushed back against the federal government.

On Oct. 24, 1947, Gov. Driscoll announced the new unit would not be composed on the basis of race and that any segregated armories would be integrated immediately.

On Dec. 3, 1947, Driscoll stated, “All of our citizens must be given the opportunity to enlist in the New Jersey units of the National Guard and participate in any of its activities for which each individual is considered qualified.”

This was in direct violation of the official War Department policy of the time that “negro manpower will be employed in negro regiments or groups, battalions or squadrons, troops or batteries.”

Over the next several months Driscoll, along with generals from the New Jersey National Guard, engaged in a fascinating back and forth with the National Guard Bureau, Secretary of Defense James V. Forrestal, and the Secretary of the Army Kenneth C. Royall.

Noteworthy is the exchange between Driscoll and Royall in January and February of 1948.

“Your telegram which I have just received does not suffice for my wire to Secretary of Defense,” said Driscoll. “It will be necessary for any National Guard units placed under the supervision of New Jersey authority to comply fully with both the spirit and the letter of our constitution.”

It was only under increasing pressure from New Jersey that President Truman announced he had “instructed the Secretary of Defense to take steps to have the remaining instances of discrimination in the armed services eliminated as rapidly as possible,” on Feb. 2, 1948.

On Feb. 7, Royall replied to Gov. Driscoll.

“I recognize the importance to a sovereign state of a constitutional provision such as yours, and I have determined that for the present, Army militia units of New Jersey, if otherwise qualified, will not be denied Federal recognition on the ground of non-segregation.”

The New Jersey Department of Defense published General Order Number 4 on Feb. 12, 1948, stating: “no qualified person shall be denied any military rights, nor be discriminated against in exercise of any military rights, nor be segregated in the militia because of religious principles, race, color, ancestry or national origin.”

On March 17, 1948, the newly created United States Air Force also formally gave in to the New Jersey Constitution’s anti-discrimination provisions.

Gov. Driscoll later reflected on the historical significance of these first federally recognized military units saying, “That this provision in our basic charter is working smoothly in the National Guard throughout the State, is due entirely to the intelligent understanding of the problem on the part of all our citizens, regardless of color.”

Several more months would pass until President Truman finally signed the executive order destined to become remembered by history books and newspaper editorialists as a watershed moment for racial equality. The real history is more complex and centered around the constitution of a small state standing alone against the power of the federal government.[i]

[i] New Jersey’s original Constitution in 1776 was also noteworthy. This Constitution made New Jersey the only State to grant unmarried women and property-owning African-Americans the right to vote, although these provisions were eventually rescinded by 1807.

]]>In defense of the court decision striking down Obamacarehttps://tenthamendmentcenter.com/2019/01/02/in-defense-of-the-court-decision-striking-down-obamacare/ Wed, 02 Jan 2019 18:50:39 +0000http://tenthamendmentcenter.com/?p=28168The outrage against the latest court decision striking down the Affordable Care Act (ACA or Obamacare) is misplaced. Much of it comes from people – particularly liberal law professors – who thought the latest suit against the ACA had no chance because it was “absurd” and “nonsense.” No one likes to be proven wrong, especially not law professors. Yet the truth […]]]>

Much of it comes from people – particularly liberal law professors – who thought the latest suit against the ACA had no chance because it was “absurd” and “nonsense.” No one likes to be proven wrong, especially not law professors.

Yet the truth is that one of Judge Reed O’Connor’s rulings seems inescapable. This was his conclusion that the ACA’s mandate requiring people to buy government-approved health insurance is no longer constitutional. In 2012, the Supreme Court upheld that mandate only because it was supported by a financial penalty the court found to be an “indirect tax.” The court found that other parts of the Constitution did not support the mandate. So when Congress repealed the penalty last year, it left the mandate without any constitutional legs.

Judge O’Connor further ruled that without the mandate, no other part of the ACA can stand, because without the mandate Congress would not have enacted the rest of the law. In legal terms, the judge held that the mandate was not “severable” from the rest of the ACA.

The judge’s opinion shows that the ACA itself affirms explicitly and repeatedly that the mandate is essential to the rest of the law. Just one example: Section 18091(2)(H) of the ACA states that “The requirement [mandate] is an essential part of this larger regulation of economic activity, and the absence of the requirement would undercut Federal regulation of the health insurance market.” That is apparently why the ACA, unlike many other complicated statutes, does not have a severability clause. That is, it does not say that if one part is void, the other parts survive.

Functionally, the entire ACA revolves around the mandate. The mandate forces people to buy health insurance, giving insurance companies and health care providers more revenue. The added revenue enables the companies and providers to pay for the ACA’s new taxes and regulations. And the new taxes and regulations help people comply with the mandate because (1) the tax money pays for subsidies (including tax credits) and (2) the regulations—supposedly—reduce costs.

“Shared responsibility” is the ACA’s name for this creaky wheel of mandate, taxes, regulations, and subsidies.

As Judge O’Connor also notes, in the 2012 ACA case, all nine Supreme Court justices admitted the tie between the mandate and the rest of the law. Four justices specifically addressed whether the mandate could be severed from the remainder. All four agreed that it could not. They compared the ACA to a decorated Christmas tree: Take away the tree (the mandate), and the ornaments no longer serve their purpose.

Three years later the Supreme Court rescued ACA tax credits from the law’s bad drafting. Central to the court’s holding was the tight interconnection between different parts of the statute: tax credits, the mandate, and so forth.

The best argument for separating the mandate from the rest of the ACA is that in 2017 Congress repealed the tax penalty for violating the mandate but left the rest of Obamacare in place. But as Judge O’Connor points out—

* Congress repealed only the penalty, not the mandate. It retained the mandate as an unconditional command, no longer as a mere condition on a tax.

* Congress also retained the ACA’s language about how “essential” that mandate was to the rest of the law.

* Congress did nothing to contradict the Supreme Court’s view that the mandate was essential.

Thus, the 2017 Congress sent the following message, “We no longer want the penalty, but we still want the mandate. If the mandate is void, then let the ACA collapse and we’ll try something different.”

Some commentators argue that the plaintiffs did not suffer damage, and therefore had no standing to sue. I agree that standing for the two individual plaintiffs was debatable. I think Judge O’Connor’s treatment of standing should have been more thorough. But there were 20 other plaintiffs as well – 19 states and a state governor. The ACA affects them financially and in other ways. The states had standing in this case for much the same reasons they had standing in earlier Obamacare litigation.

In any event, it ill-befits liberal critics to complain about standing. Some of their favorite Supreme Court decisions were issued only because the court finessed standing requirements.

Still another charge against Judge O’Connor is that voiding the ACA is “disruptive.” In the real world, of course, law professors and other commentators charge “disruption” only against court decisions they don’t like. Most fully support very disruptive decisions, so long as the results are liberal.

The truth is that the quiet death of the ACA would surely be less disruptive than its chaotic life. (People can respond best if government leaves them free to do so.) The states can help by establishing pre-existing condition pools and resuming their traditional governance of insurance and health care.

Finally: Some critics complain that Judge O’Connor’s opinion was too “activist.” But his job was to apply the law, and he seems to have done that responsibly. Certainly the relief he granted is far less activist than the nationwide injunctions liberal judges are issuing these days.

Although it is unclear whether Judge O’Connor will be sustained on appeal, his decision is a well-reasoned one. It is sad that so many commentators chose to trash it without fair consideration.

]]>Shake Off That “Debilitating Pessimism”https://tenthamendmentcenter.com/2018/12/30/shake-off-that-debilitating-pessimism/ Sun, 30 Dec 2018 19:16:36 +0000http://tenthamendmentcenter.com/?p=28142Rothbard was right. We have to cast off the needless pessimism and keep up the good fight for liberty.]]>

I’ve run into quite a bit of negativity out there lately. It seems like a lot of people are frustrated and discouraged. I get it. But I think there is always room for optimism.

People will often ask me why I invest so much time and energy into the work here at the TAC. They’ll say, “Things are never going to change.” Or, “People don’t want limited, constitutional government, so why bother?” Or, “You can never really bring down the feds. They’re just too powerful.” Or, “Liberty is a fantasy.”

On and on it goes. Reason after reason why we shouldn’t even bother to try. We’re never going to win, right?

As I said, I get it. I am not the most optimistic person in the world by nature. I get discouraged, frustrated and just plain tired. That litany of pessimistic statements run through my head too. Heck, sometimes they come out of my own mouth.

But when I start getting down and feeling like everything is hopeless, I think of this quote by Murray Rothbard.

“For the libertarian, the main task of the present epoch is to cast off his needless and debilitating pessimism, to set his sights on long-run victory and to set about the road to its attainment.”

Debilitating pessimism.

That’s quite an indictment. But you know what? It’s true.

Pessimism is debilitating. It motivates us to do — well — nothing. And no matter how small you think the odds are of winning are even if you do something, I can guarantee you this — if you do nothing, you’ll get nothing.

And here’s the thing: you never know when change is going to happen.

I was a Cold War kid. I grew up in the 1970s and 80s. We lived with the specter of nuclear war with the mighty Soviet Union. It might seem silly now, but it was a fear that was in the back of everybody’s mind. When I was in high school, I would have never believed you if you had told me that within a decade the Soviet Union would just collapse. It just wasn’t possible. Yet in 1991, that’s exactly what happened.

This isn’t an isolated thing. Things change unexpectedly all the time. Think about it. People in 75 AD couldn’t conceive of Rome falling. People in 1750 couldn’t have imagined American colonists defeating the mighty British Empire. And nobody in the early 18th century thought slavery would go away.

I often think of abolitionists in the early day of that movement. To our 21st century sensibilities, opposition to slavery is a no-brainer. But in the early 1800s, it took real moral courage. Almost nobody supported abolition – at least not based on any kind of absolute moral imperative. Abolitionists were marginalized and ridiculed. And yet, a handful of dedicated people drove that movement forward when pretty much everybody hated them. I’m convinced that were it not for Lincoln’s war, they would have eventually ended slavery peacefully.

My point is that if you believe in something – if you are convinced something is right and true – you have to fight for it. Even if the odds seem insurmountable. Even when you’re tired. Even when the crowd tells you you’re wasting your time. Because you never know when something is going to tip that scale and kick off an avalanche of change.

Rothbard was right. We have to cast off the needless pessimism and keep up the good fight for liberty.

]]>How Data Collected in Warrantless Surveillance Ends Up Everywherehttps://tenthamendmentcenter.com/2018/12/28/how-data-collected-in-warrantless-surveillance-ends-up-everywhere/ Fri, 28 Dec 2018 19:16:49 +0000http://tenthamendmentcenter.com/?p=28164Recent revelations by the Electronic Frontier Foundation (EFF) relating to warrantless surveillance have placed cooperative efforts between state and federal agencies under the microscope. What turned up confirms the alarming manner in which data is gathered and shared up and down an intricate information superhighway between state and local law enforcement, and federal agencies including […]]]>

Recent revelations by the Electronic Frontier Foundation (EFF) relating to warrantless surveillance have placed cooperative efforts between state and federal agencies under the microscope.

What turned up confirms the alarming manner in which data is gathered and shared up and down an intricate information superhighway between state and local law enforcement, and federal agencies including FBI, CIA and NSA.

Through an intricate network of interconnected agencies and information sharing programs, data collected by a small town sheriff can eventually end up in national databases accessible by state, local and federal law enforcement agencies across the country. At the same time, warrantless data vacuumed up by the NSA can end up on that same sheriff’s laptop.

Information uncovered by the EFF demonstrates how this happens with license plate data. Recently released records obtained via open records requests encompassed the data compiled by 200 agencies that utilize Automated License Plate Readers (ALPRs). The data accounts for more than 2.5 billion license plate scans in 2016 and 2017. Perhaps more concerning, this gigantic sample of license plate scans reveals that 99.5 percent of this data was collected regardless of whether the vehicle or its owner were suspected of being involved in criminal activity. On average, agencies share this data with a minimum of 160 other agencies. In some cases, agencies share this data with as many as 800 other agencies.

ALPRs combine high-speed cameras and optical character recognition technologies that quickly scan unique, individual license plates and convert the image into machine-readable text. They can be deployed in stationary locations in arrays that cover every vehicle and every direction along highways, interstates, suburban roadways and even entrances to events and locations such as gun shows and organic grow shops. They can also be mounted on police cars to passively collect license plate scans during routine patrols or to surveil specific communities by systematically driving through targeted neighborhoods. This mass surveillance technology operates lightning fast. It is capable of scanning every driver on the road and logging their location, regardless of whether they are suspected of being involved in a crime. Keep in mind, all drivers are required, by law, to tag all registered vehicles with license plates. Each unique plate is attached to the name of the person the vehicle is registered to. ALPRs essentially convert license plates into individual tracking devices.

After the plate data is collected, the ALPR array uploads the data to a central database, along with a time and date stamp and the GPS coordinates of your location. Police can then search these databases to see where drivers have traveled or to identify vehicles that have visited specific locations. Police also have the ability to add suspicious plates to “hot-lists,” allowing for real-time alerts when a vehicle is detected by an ALPR system.

It has become standard practice for all warrantless surveillance data gathered at the state level to also be uploaded to federal fusion centers operated by the Department of Homeland Security (DHS) and other federal agencies. Fusion centers serve as clearinghouses for all kinds of information shared between federal, state and local law enforcement agencies—including data gathered by surveillance cameras, drones, intercepted cellphone and email communications, social network spying, as well as ALPRs and other invasive modes of surveillance. The DHS funds and ultimately runs 79 fusion centers across the U.S. The DHS describes homeland security intelligence/information fusion as the ”…process of managing the flow of information to support the rapid identification of emerging terrorism-related threats requiring intervention by government and private-sector authorities.”

Fusion centers were created to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.”

Reuters revealed that the NSA’s surveillance operation is equally far removed from counter-terrorism in an August 2013 article. According to documents obtained by the news agency, the NSA passes information to state and local police through a formerly secret DEA unit known as Special Operations Divisions and the cases “rarely involve national security issues.” Nearly all of the information involves regular criminal investigations—often relating to the “war on drugs,” not terror-related investigations. In practice, the NSA knowingly and intentionally collects and stores this data without a warrant, culls and analyzes it in order to generate profiles on unsuspecting Americans, and then encourages state and local law enforcement to violate the Fourth Amendment by making use of this information in the course of their investigations.

Fusion centers are merely one component in a broader federal spying program. Federal agencies sweep up, collect and share astronomical amounts of data gathered at the state level. This is achieved through a relatively obscure entity called the Information Sharing Environment (ISE). ISE is comprised of federal and state partnerships that facilitate federal efforts to track millions of American citizens. According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators… have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.”

In other words, ISE serves as a conduit for the sharing of surveillance data, including information gathered without a warrant. Known ISE partners include the Office of Director of National Intelligence which oversees 17 federal agencies and organizations, including the NSA. ISE utilizes these partnerships to collect and share data on the millions of unwitting people they track. Again, this is achieved through the warrantless acquisition of phone calls, emails, web browsing history and text messages. These unconstitutional searches and seizures are often done without probable cause and in a manner that remains hidden and concealed from their targets’ knowledge.

WHAT STATES CAN DO?

Since state and local law enforcement agencies serve a vital role in this national surveillance network, states can hinder warrantless spying by limiting their own surveillance activities. Whatever the surveillance tool – ALPR, cell site simulator, drone, facial recognition, biometric data – states can reduce the harm and help protect privacy by passing legislation to require a warrant or a court order for its use, limiting the retention of collected data to a specified period of time, such as 30 days, and by prohibiting or limiting data sharing.

States can more broadly hinder warrantless federal surveillance by refusing to participate at all.

In June of 2018, the state of Michigan took this step when it enacted the Fourth Amendment Protection Act, which prohibits the states, and their political subdivisions, from assisting, participating with or providing material support or resources to a federal agency that enables it to collect or facilitate in the collection or use of a person’s electronic data unless one of these five conditions apply:

The person has given informed consent

The action is pursuant to a warrant that is based on probable cause and specifically describes the person, place or thing to be searched or seized

The action is in accordance with a legally recognized exception to warrant requirements

The action will not infringe on any reasonable expectation to privacy the person may have

The state or political subdivision of the state collected the electronic data or metadata legally

The measure resoundingly passed the Michigan House 108-1 and passed the Senate, unanimously, 37-0. You can read about the Michigan bill HERE.

Based on the federal government’s heavy reliance on partnerships and data sharing with state and local law enforcement agencies, passage of the Fourth Amendment Protection Act has the potential to impede warrantless surveillance in states all across America. For example, if federal agents moved to engage in mass, warrantless surveillance on specific groups or political organizations in Michigan, it will now have to do so without the backing, support or collaboration of state or local law enforcement agencies. Additionally, state resources such as water and energy cannot be provided to federal agencies who are conducting warrantless surveillance operations in that state. This development will likely prove to be a thorny and difficult problem for the feds to overcome.

The time for state leadership in privacy protection is now.

]]>Feds Legalize Hemp But Not CBD; States Can Continue to Nullify Prohibitionhttps://tenthamendmentcenter.com/2018/12/26/feds-legalize-hemp-but-not-cbd-states-can-continue-to-nullify-prohibition/ Wed, 26 Dec 2018 16:42:16 +0000http://tenthamendmentcenter.com/?p=28139On Dec. 20, Pres. Donald Trump sign the 2018 farm bill, which included provisions to legalize industrial hemp. But despite removing the plant from the list of controlled substances, the federal government still bans the sale of CBD products under FDA rules. With the passage of the farm bill, the federal government will now treat […]]]>

On Dec. 20, Pres. Donald Trump sign the 2018 farm bill, which included provisions to legalize industrial hemp. But despite removing the plant from the list of controlled substances, the federal government still bans the sale of CBD products under FDA rules.

With the passage of the farm bill, the federal government will now treat industrial hemp as an agricultural commodity instead of a controlled substance. It also specifically includes hemp in various USDA farm programs. The legislation also redefines hemp to include its “extracts, cannabinoids and derivatives.” This ensures that hemp-derived cannabidiol (CBD) can no longer be regulated as a controlled substance. Nevertheless, this does not address the authority the FDA claims to regulate CBD as a drug.

According tothe Hemp Roundtable, the Drug Enforcement Administration no longer has any possible claim to interfere with the interstate commerce of hemp products.

The change in federal law will now enable hemp farmers to access crop insurance and participate in USDA programs. State and tribal governments can still regulate or even ban hemp production and sales, but they cannot interfere with interstate transport of hemp or hemp products.

While the DEA will no longer have the authority to regulate hemp as a controlled substance, the provisions of the farm bill have no bearing on FDA rules and regulations regarding CBD. In fact, a section in the farm bill makes this explicit.

Section 297D, paragraph (c)(1) “Regulations and Guidelines; Effect on Other Law” states “nothing in this subtitle shall affect or modify the Federal Food, Drug, and Cosmetic Act.”

Practically speaking, passage of the farm bill does not mean CBD will now be federally-legal in all 50 states, as some hemp supporters claim. In fact, the FDA still maintains a strict prohibition on the sale of CBD in the U.S.

Cannabidiol is a compound extracted from industrial hemp. Products available on retail shelves across the country do not contain measurable amounts of THC, the compound in marijuana that makes people high. Many people find CBD effective in treating a number of medical conditions, including seizures, inflammation, pain and anxiety.

The FDA classifies CBD as “a drug for which substantial clinical investigations have been instituted.” Under federal law, the FDA maintains full control over the regulation of drugs, and any substance classified by the FDA as a drug or an investigational drug cannot be marketed as a “dietary supplement.” Theagency maintains the sale of CBD or any food products containing the substance is illegal.

In aJune 2018 statement, the FDA said it remains “concerned about the proliferation and illegal marketing of unapproved CBD-containing products with unproven medical claims.”

“The FDA has taken recent actions against companies distributing unapproved CBD products. These products have been marketed in a variety of formulations, such as oil drops, capsules, syrups, teas, and topical lotions and creams.”

The FDA has considered CBD a drug under its purview since the 2014 farm bill passed allowing the production of hemp in state pilot programs for research purposes. The 2018 farm bill does not address FDA regulation and to date, the agency hasn’t changed its position on CBD. It maintains that the retail sale of CBD is banned, and yet products are readily available across the country.

The agency can continue to enforce these same rules even with the passage of the 2018 farm bill. While farmers can now legally grow hemp for commercial purposes, including the production of fiber, biofuel, building products, paper, clothes and even food products that don’t contain CBD, the sale of cannabinol or food products containing CBD will remain federally-illegal, as it has been all along, unless the FDA changes its policy or Congress passes legislation specifically legalizing CBD.

But here’s the good news. Despite past and ongoing federal prohibition,CBD is everywhere. A New York Times article asserted that “with CBD popping up in nearly everything — bath bombs, ice cream, dog treats — it is hard to overstate the speed at which CBD has moved from the Burning Man margins to the cultural center.”

“The tsunami of CBD-infused products has hit so suddenly, and with such force, that marketers have strained to find a fitting analogy. Chris Burggraeve, a former Coca-Cola and Ab InBev executive, called it the ‘new avocado toast,’ in an interview with Business Insider.”

This was happening when both the DEA and FDA prohibited CBD. It will undoubtedly continue as long as market demand remains and states don’t interfere. The FDA can’t effectively enforce prohibition without the assistance of state and local officials.

According to the FDA, the agency prioritizes enforcement based on a number of factors, including “agency resources and the threat to the public health. FDA also may consult with its federal and state partners in making decisions about whether to initiate a federal enforcement action.”

Even with both the FDA and DEA theoretically enforcing federal laws and regulations banning CBD, state and local action have already nullified federal prohibition in practice and effect. There’s no reason to think that won’t continue as long as states maintain the same stance on CBD as they did under the 2014 farm bill. Simply put, the federal government lacks the personnel and resources to crack down on CBD – even if the FDA wants to.

]]>A Christmas Gift from James Madison: The Virginia Resolutions of 1798https://tenthamendmentcenter.com/2018/12/21/a-christmas-gift-from-james-madison-the-virginia-resolutions-of-1798/ Fri, 21 Dec 2018 11:35:48 +0000http://tenthamendmentcenter.com/?p=28157In his resolutions of 1798, Madison asserted that the states had an obligation to act against egregious federal exercises of undelegated power.]]>

Resolutions drafted by James Madison and passed by Virginia on Dec 21. and 24, 1798, answer a timeless question: What do we do when the federal government oversteps its constitutional bounds?

All too often, we simply ignore it. But James Madison had other ideas. The man known as “The Father of the Constitution” insisted states are “duty bound, to interpose” and arrest “the progress of the evil.”

Within a decade of the ratification of the Constitution, the federal government was already testing the limits of its authority. During the summer of 1798, Congress passed, and President John Adams signed into law, four acts together known as the Alien and Sedition Acts. With winds of war blowing across the Atlantic, the Federalist Party majority wrote the laws to prevent “seditious” acts from weakening the U.S. government. Federalists utilized fear of the French to stir up support for these draconian laws, expanding federal power, concentrating authority in the executive branch and severely restricting freedom of speech.

Two of the Alien Acts gave the president the power to declare foreign U.S. residents an enemy, lock them up and deport them. These acts vested judicial authority in the executive branch and obliterated due process. The Sedition Act essentially outlawed criticizing the federal government – a clear violation of the First Amendment.

Recognizing the grave danger these act posed to the basic constitutional structure, Thomas Jefferson and Madison drafted resolutions that were passed by the Kentucky and Virginia legislatures in Nov. and Dec., 1798, respectively. The “Principles of ’98” formalized the principles of nullification as the rightful remedy when the federal government oversteps its authority.

After Gov. Garrard signed the Kentucky Resolutions on Nov. 16, Jefferson sent a draft to Madison, writing, “I inclose you a copy of the draught of the Kentuckey resolves. I think we should distinctly affirm all the important principles they contain, so as to hold to that ground in future, and leave the matter in such a train as that we may not be committed absolutely to push the matter to extremities, & yet may be free to push as far as events will render prudent.”

Madison did just that, drafting his own resolutions for introduction in the Virginia legislature. The Virginia Resolutions of 1798 declared the Alien and Sedition Acts “unconstitutional.” Madison also asserted that the states had an obligation to act against egregious federal exercises of undelegated power.

“That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”

Madison gave his draft of the Virginia Resolutions to Wilson Cary Nicholas, who showed them to Jefferson. In a letter dated November 29, 1798, Jefferson recommended adding more emphatic language in declaring the Alien and Sedition Acts unconstitutional.

“The more I have reflected on the phrase in the paper you shewed me, the more strongly I think it should be altered. suppose you were to instead of the invitation to cooperate in the annulment of the acts, to make it an invitation: ‘to concur with this commonwealth in declaring, as it does hereby declare, that the said acts are, and were ab initio—null, void and of no force, or effect’ I should like it better. health happiness & Adieu.”

Nicholas added words declaring that the Alien and Sedition Acts were unconstitutional “not law, but utterly null, void and of no force or effect.”

John Taylor of Caroline introduced Madison’s resolutions with Nicholas’ addition on Dec. 10, 1798. He described the resolutions, “as a rejection of the false choice between timidity and civil war.” Taylor argued that state nullification provided an alternative to popular nullification – in other words outright armed rebellion. In legislative debates, he argued that “the will of the people was better expressed through organized bodies dependent on that will, than by tumultuous meetings; that thus the preservation of peace and good order would be more secure.” [1]

In the course of the debate, Jefferson’s suggested wording was removed. During the period following passage of the Alien and Sedition Acts, there was talk of outright revolution. Both the Kentucky and Virginia legislatures went to great pains to ensure they were striking a balance between a hard line and moderation. They wanted to make their point, but they did not want to spark violence.

Removing Jefferson’s wording did not change the substance of the resolutions. In fact, declaring a law “unconstitutional” was essentially the same as calling it “null, void and of no effect.” Alexander Hamilton inferred this distinction during the New York ratification debate.

“The acts of the United States, therefore, will be absolutely obligatory as to all the proper objects and powers of the general government…but the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding.”

The Virginia House of Delegates passed the resolutions on Dec. 21, 1798, by a vote of 100 to 63. The Senate followed suit on Dec. 24, by a 14 to 3 margin.

Taken together, the Kentucky and Virginia Resolutions lay out the principles of nullification. But they did not actually nullify the Alien and Sedition Acts. These non-binding resolutions merely made the case and set the stage for further action.

[1] Robert H. Churchill, Manly Firmness, the Duty of Resistance, and the Search for a Middle Way: Democratic Republicans Confront the Alien and Sedition Acts, (1999 Annual Meeting of the Society for Historians of the Early American Republic, Lexington, Ky., July 17, 1999) (http://uhaweb.hartford.edu/CHURCHILL/SHEAR_Paper.pdf)

]]>The Unconstitutional Bump Stock Ban and What to do About ithttps://tenthamendmentcenter.com/2018/12/18/the-unconstitutional-bump-stock-ban-and-what-to-do-about-it/ Tue, 18 Dec 2018 20:57:18 +0000http://tenthamendmentcenter.com/?p=28155The ban is wholly unconstitutional. It is almost identical, in process, to a failed attempt by the Obama administration to ban M855 ammunition. And it can be nullified through state, local, and individual resistance.]]>

Anyone who possesses one of the devices will have 90 days to turn in or destroy it once the final rule is published in the federal register. That is expected to happen this Friday.

The ban is wholly unconstitutional. And it is almost identical, in process, to a failed attempt by the Obama administration to ban M855 ammunition. But it can be nullified through state, local, and individual resistance.

TWO PEAS IN A POD

Acting Attorney General Matthew Whitaker signed the new rule Tuesday morning. This is notable considering the fact that the Obama administration did not believe that federal law allowed it to ban bump stocks.

“The stock has no automatically functioning mechanical parts or springs and performs no automatic mechanical function when installed,” the Obama administration’s ATF technology chief wrote. “Accordingly, we find that the ‘bump-stock’ is a firearm part and is not regulated as a firearm under Gun Control Act or the National Firearms Act.”

In a dangerous and unfortunate step for the Constitution and liberty, it seems the Trump administration has taken an unconstitutional gun control move right out of Obama’s playbook.

As TJ Martinell noted, “President Obama directed the ATF topursue a possible ban on the M855 cartridge. To do so, they released a proposed agency rule which redefined M855 ‘green tip’ ammunition as ‘armor piercing’ to qualify it for federal prohibition under the 1968 Gun Control Act (GCA).”

This is essentially the same process the Trump administration is using to qualify bump-stocks for federal prohibition under the 1934 National Firearms Act (NFA).

There’s some serious irony to this.

An administration widely believed to be in favor of more federal gun control rejected the notion of banning bump stocks under current federal law, while an NRA-backed administration, widely believed to be in favor of the Second Amendment, has aggressively pushed to get it done anyway.

In short, Trump is using Obama’s tactics to push more federal gun control — and both efforts were totally unconstitutional.

ZERO

As Mike Maharrey wrote, “Because the Constitution does not delegate gun control to the federal government, and because the Ninth Amendment makes it clear that the federal government cannot infringe on individual liberties – even those not listed in the Bill of Rights – any regulation or laws regarding guns federal government is unconstitutional.”

“Simply put, no matter how you care to interpret the Second Amendment, based on a constitutional reading guided by Amendment IX and X, the federal government possesses zero authority to enforce any type of gun laws, or infringe on the right to self-defense in any way whatsoever,” Maharrey continued.

The Second Amendment has no exceptions, whether it’s for a bump-stock, M855 ammunition, or anything similar.

STRATEGY

The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts – including gun control.

As noted by the National Governors’ Association during the partial government “shutdown” of 2013, “states are partners with the federal government on most federal programs.”

Partnerships don’t work too well when half the team quits.

The ATF has just over 5000 employees for the entire country, and about one-third of them are in administration. That labor force gives them a capacity of a little over 8000-10,000 closed cases per year.

In theory, then, say there were 10 or 11 million people owning undocumented short-barreled shotguns in violation of the NFA. There is absolutely no way that the federal government would have the resources to stop them without significant support from state and local law enforcement.

In 2014, Judge Andrew Napolitano discussed how this would play out in response to Obama-era gun control proposals, noting that a single state withdrawing resources for federal enforcement would make new gun control efforts “nearly impossible” to enforce.

“If the federal government limits guns in a state, will it need the assistance of state police to enforce those limitations?” Napolitano asked rhetorically. “Yes, they will. And do the states have the right to refuse to enforce federal law that’s against state public policy? Yes, they do. That’s where we are on this.”Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” represents an extremely effective method to bring down federal gun control measures because most enforcement actions rely on help, support and leadership from state and local governments.

Even the Supreme Court agrees. Under the long-standing “anti-commandeering doctrine,” the Court has repeatedly held that states are not required to use resources or manpower to enforce or implement federal acts or regulatory programs.This is based primarily on five cases dating back to 1842. Printz v. U.S. serves as the cornerstone.

“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”

IDAHO

On March 20, 2014, Idaho Gov. Butch Ottersigned a bill that prohibits state or local enforcement of any federal act enacted after that date relating to personal firearms, a firearm accessory, or ammunition in violation of the Idaho state constitution’s protections of the right to keep and bear arms.

It reads, in part:

“Any official, agent or employee of the state of Idaho or a political subdivision thereof who knowingly and willfully orders an official, agent or employee of the state of Idaho or a political subdivision of the state to enforce any executive order, agency order, law, rule or regulation of the United States government as provided in subsection (2) of this section upon a personal firearm, a firearm accessory or ammunition shall, on a first violation, be liable for a civil penalty not to exceed one thousand dollars ($1,000) which shall be paid into the general fund of the state.”

TEXAS

A similar, and potentially more expansive law has been proposed for the 2019 legislative session in Texas.

House Bill 238 (HB238), from Rep Matt Krause (R-Fort Worth) would prohibit state agencies and law enforcement officers from having “contract with or in any other manner provide assistance to a federal agency or official with respect to the enforcement of a federal statute, order, rule, or regulation purporting to regulate a firearm, a firearm accessory, or firearm ammunition if the statute, order, rule, or regulation imposes a prohibition, restriction, or other regulation, such as a capacity or size limitation or a registration requirement, that does not exist under the laws of this state.”

In short, as long as Texas itself doesn’t ban bump stocks, which it hasn’t, passage of HB238 would have the same effect as the 2014 Idaho law. That is, the state would be banned from helping the federal government enforce its new bump stock ban.

TO THE STATES

By withdrawing all resources and participation in federal gun control, states and even local governments can help bring these unconstitutional act to their much-needed end.

Supporters of the right to keep and bear arms should focus their efforts on the state level. There are four steps that can be taken today.

Be firm, but courteous. Email both and urge them to introduce the model legislation.

Share this information widely via social media and to your email contacts.

Bonus

Wait 3-5 business days, then call the office of both your state representative and senator to follow up on your email no matter what you received in response.

It’s going to take human action to get the job done. Today, it starts with less than ten minutes of action. In the end, when enough people say “No!” to the federal government, and enough states pass laws to back those people up, there’s not much the feds can do to shove their so-called “laws,” regulations, and mandates down our throats.

]]>Why The Senate Vote to End Yemen War is So Importanthttps://tenthamendmentcenter.com/2018/12/17/why-the-senate-vote-to-end-yemen-war-is-so-important/ Mon, 17 Dec 2018 22:40:40 +0000http://tenthamendmentcenter.com/?p=28150For the first time in 45 years, a chamber of the US Congress voted to pull US forces from a military conflict under the 1973 War Powers Act.]]>

Last week something historic happened in the US Senate. For the first time in 45 years, a chamber of the US Congress voted to pull US forces from a military conflict under the 1973 War Powers Act.

While there is plenty to criticize in the War Powers Act, in this situation it was an important tool used by a broad Senate coalition to require President Trump to end US participation in the Saudi war against Yemen. And while the resolution was not perfect – there were huge loopholes – it has finally drawn wider attention to the US Administration’s dirty war in Yemen.

The four year Saudi war on neighboring Yemen has left some 50,000 dead, including many women and children. We’ve all seen the horrible photos of school buses blown up by the Saudis – using US-supplied bombs loaded into US-supplied aircraft. Millions more face starvation as the infrastructure is decimated and the ports have been blocked to keep out humanitarian aid.

Stopping US participation in this brutal war is by itself a wise and correct move, even if it comes years too late.

The Senate vote is also about much more than just Yemen. It is about the decades of Presidential assaults on the Constitution in matters of war. President Trump is only the latest to ignore Article I, Section 8 of the US Constitution, which grants war power exclusively to Congress. Yes, it was President Obama who initially dragged the US illegally into the Yemen war, but President Trump has only escalated it. And to this point Congress has been totally asleep.

Fortunately that all changed last week with the Senate vote. Unfortunately, Members of the House will not be allowed to vote on their own version of the Senate resolution.

Republican Leadership snuck language into a rule vote on the Farm Bill prohibiting any debate on the Yemen war for the rest of this Congressional session. As Rep. Thomas Massie correctly pointed out, the move was both unconstitutional and illegal.

However as is often the case in bipartisan Washington, there is plenty of blame to go around. The Republicans were able to carry the vote on the rule – and thus deny any debate on Yemen – only because of a group of Democrats crossed over and voted with Republicans. Democratic Whip Steny Hoyer is being blamed by progressives for his apparent lack of interest in holding his party together.

Why would Democrats help a Republican president keep his war going? Because, especially when you look at Congressional leadership, both parties are pro-war and pro-Executive branch over-reach. They prefer it to be their president who is doing the over-reaching, but they understand that sooner or later they’ll be back in charge. As I have often said, there is too much bipartisanship in Washington, not too much partisanship.

Americans should be ashamed and outraged that their government is so beholden to a foreign power – in this case Saudi Arabia – that it would actively participate in a brutal war of aggression. Participating in this war against one of the world’s poorest countries is far from upholding “American values.” We should applaud and support the coalition in the Senate that voted to end the war. They should know how much we appreciate their efforts.

]]>Today in History: The Boston Tea Partyhttps://tenthamendmentcenter.com/2018/12/16/today-in-history-the-boston-tea-party/ Sun, 16 Dec 2018 22:02:59 +0000http://tenthamendmentcenter.com/?p=28144Contrary to popular belief, this was not specifically a tax protest ]]>

Today in 1773, a group of Bostonians dressed as Mohawk Indians boarded three British ships and dumped several tons of tea into Boston Harbor. The event became known as the “Boston Tea Party,” or the “Destruction of the Tea.”

After congregating at the Old South Meeting House, a group of patriots donned the attire of Native Mohawk Indians – to show that their action was reflective of an American cause rather than a British one. They rushed down to the harbor, where they boarded the tea ship Dartmouth and unloaded all 342 chests of tea into the water. Although they engaged in a particularly rebellious act, the Sons of Liberty made sure to avoid the destruction of private property. Nothing was stolen or looted from the ship, and the decks were even swept clean.

Those who participated in the tea’s destruction were sworn to secrecy, and those who participated are still subject to historical debate. Although the complicity of Samuel Adams is still disputed, he unquestionably embarked upon an immediate campaign to publicize the event. Adams and the Massachusetts Whigs declared that taxes could not levied without the endorsement of the people’s representatives – a notion that stretched all the way back to 1215 and the Magna Carta.

Contrary to popular belief, this was not specifically a tax protest – the patriots did object to taxes levied without representation, but 1773 Tea Act had actually lowered the taxes on tea. Instead, the colonists disavowed mercantile practices of the British government, specifically the tea monopoly that was granted to the East India Tea Company through the law. Additionally, they renounced the idea that Parliamentary law was supreme over all of the British Empire and could override the will of the colonial assemblies.

Upon learning of the event, John Adams wrote: “This Destruction of the Tea is so bold, so daring, so firm, so intrepid, and so inflexible, and it must have so important Consequence sand so lasting, that I cannot but consider it as an Ecpocha in History.”

Although it was the most famous event called a “Tea Party,” other states resisted the implementation of the act as well. In South Carolina, patriots dumped tea into the Cooper River. In Annapolis, a ship carrying loads of tea was put to the torch. In New York and Philadelphia, the ships bringing the tea were rejected and turned back to England.

In Edenton, North Carolina, Penelope Barker organized a group of patriot women and signed a document of rebuke against the act and pledged to boycott British goods. They agreed to obstruct the policy “until such time that all acts which tend to enslave our Native country shall be repealed.” Effectively, all states meddled with the enforcement of the law in the same ways they had resisted the Stamp Act, effectively nullifying it.

The British responded to the Boston Tea Party harshly. Parliament answered by passing the Coercive Acts – deemed in the colonies as the Intolerable Acts. The Massachusetts Government Act altered the colonial government’s legislature such that one house would be chosen only by the crown only. The Boston Port Act closed Boston’s port to all foreign trade, crippling the city’s maritime economy. The Administration of Justice Act allowed the Royal governor to order trials against royal officials to be moved to Great Britain or elsewhere within the British Empire. The Quartering Act provided for involuntary housing for British military forces on the private property of the colonists.

Taken as a whole, the Intolerable Acts sparked detestation and resistance, polarizing many who had never before been predisposed to the patriot cause. The laws were viewed as malignant attack upon the fundamental nature of the British constitutional system and as an affront to individual rights. Undoubtedly, they would provide a catalyst that would eventually set the American colonies on a path of war and independence.

]]>Want Political Change? Go Local!https://tenthamendmentcenter.com/2018/12/14/want-political-change-go-local/ Fri, 14 Dec 2018 11:58:38 +0000http://tenthamendmentcenter.com/?p=28129When our State governments are ignored, the federal government has the carte blanche to rubber stamp all sorts of statist policy with little to no opposition.]]>

Every election cycle, the political consulting class reminds us that this is the “most important election of our lifetime”. If we don’t vote straight ticket, ***insert establishment political party***, our country is doomed.

Disillusioned voters are lectured to accept “the lesser of the two evils” and only vote within the strictures of the two-party duopoly. Any talk of voting Third Party is dismissed as a wasted voted or voting for the other side. For the political class, voting is the ultimate sacrament in the American civic religion. The religiosity is taken to another level when political shamans insist that those who do not vote have no right to complain.

On the supposed “limited government” side of the aisle, Republican insiders have faithfully recited and put these same vapid talking points into practice. And what has been the result?

But there is one particular aspect of politics that is cast aside during the federal elections frenzy—the importance of local and state elections. When you think about it, this is quite logical. The federal government’s vast size entices aspiring busybody politicians. Power-hungry politicians want nothing more than to take control of the federal apparatus of the most powerful government in human history. For most people, federal politics is the alpha and the omega of all politics in the U.S.

For individuals who genuinely want to make change, this is indeed a frustrating process. Institutional inertia and costly restrictions that prevent outside parties from making a difference at the federal level make the political game practically rigged for political outsiders. Nevertheless, there is still hope on the horizon.

If there are any elections political activists should be participating in, it’s the ones in their own backyard. Be it a municipal race or a State Senate race, local politics is an underutilized and under-appreciated facet of America’s federalist system.

The Founding Fathers, especially those of the Anti-Federalist faction, made several key contributions to our political system which allows political operatives to pursue decentralized means of implementing liberty-oriented policies.

Sadly, the century-long push for DC universalism has almost made genuine federalism an afterthought in political discussions.

The Localist Blueprint

Despite the growing trend of centralization in U.S. politics, lower levels of government are still intact and ripe for the taking. In fact, state and local offices are de facto farm teams for control freak politicians. State and local governments have their fair share of corruption and government intrusion. So, it’s no surprise aspiring politicians cut their teeth in these jurisdictions. They’re the perfect springboard for D.C. aspirants.

Needless to say, liberty lovers can and should join in the action.

Local politics is the foundation of larger political movements. For a political movement to become relevant in the first place, it must start locally. Ironically, Progressive champions of centralization have put localist politics into practice for over a century. We often forget that throughout the latter half of the 19th century, political movements centered on interventionism were rather fringe. In fact, they were completely shut out from the federal government.

But this did not deter Progressive activists and their coalitions. They focused their efforts elsewhere—specifically in local and state elections. Using every tactic possible, from electing politicians who supported their values to using initiatives, recalls, and referendums to get their pet issues implemented, Progressives slowly added municipalities and state legislatures to their power base.

Ivory tower figures like John Dewey and agrarian firebrands like Williams Jennings Bryan and his Populist Movement also chipped in to make progressive policies palatable. Eventually, Progressive victories at the local and state level gathered enough steam to start creating carryover into the federal level. The federal government fully embraced Progressivism once Woodrow Wilson assumed the presidency in 1913.

From that point forward, the rest was history.

Moving Forward

We must remember, however, the interventionist status quo we see today started out small. It began in people’s backyards, and eventually grew into a national movement. This is just one sign that liberty lovers should not hang up their gloves and accept the growth of government as a given. If anything, Progressives have given us the blueprint to political success.

Even to this day, leftist coalitions have out “nullified” their supposedly limited government rivals on the Right by ignoring federal drug prohibitions. Through ballot initiatives and other means to decriminalize and legalize controlled substances, these movements have given the federal government the proverbial cold shoulder.

All of this has been done without having to resort to violence or prolonged conflict with the federal government.

If the Left can do this, why can’t the Right?

Let’s face it, state-level political activities are not sexy, but they’re a necessary ingredient in the U.S. political system.

When our State governments are ignored, the federal government has the carte blanche to rubber stamp all sorts of statist policy with little to no opposition.

It’s high time we start thinking and acting locally when it comes to our activism.

]]>Too Much Bipartisanship in Washingtonhttps://tenthamendmentcenter.com/2018/12/12/too-much-bipartisanship-in-washington/ Wed, 12 Dec 2018 13:47:59 +0000http://tenthamendmentcenter.com/?p=28131We suffer from too much bipartisanship when it comes to the welfare-warfare state.]]>

Washington is once again gripped by the specter of a government shutdown, as Congress and President Trump negotiate an end-of-year spending deal. A main issue of contention is funding for President Trump’s border wall. Sadly, but not surprisingly, neither Congress nor the administration is fighting to cut, or at least not increase, spending.

Federal spending has increased from 3.6 trillion dollars to 4.4 trillion dollars since Republicans gained control over both chambers of Congress in 2014. Some may try to defend congressional Republicans by pointing out that for two years the Republican Congress had to negotiate spending deals with President Obama. But federal spending has increased by 7.5 percent, or over 300 billion dollars, since Donald Trump become President.

A big beneficiary of the Republican spending spree is the military-industrial complex. Republicans have increased the “defense” budget by eight percent in the past two years. President Trump and congressional Republicans claim the increases are necessary because sequestration “decimated” the military. But Congress, with the Obama administration’s full cooperation and support, suspended sequestration every year but one, so the planned cuts never went into full effect. Congress and Obama also “supplemented” the official military budget with generous appropriations for the Pentagon’s off-budget Overseas Contingency Operations fund. Spending on militarism increased by as much as 600 billion dollars over the amounts allowed for under sequestration.

President Trump has proposed reducing the projected military budget for fiscal year 2020 to 700 billion dollars. This would be a mere two percent cut, yet the usual voices are already crying that this tiny reduction would endanger our security. If history is any guide, the military-industrial complex’s congressional allies and high-priced lobbyists will be able to defeat the president’s proposed reductions and convince President Trump to further increase the military budget.

This huge military budget has little or nothing to do with America’s legitimate security needs. In fact, as candidate Trump recognized, America’s military interventions in the Middle East have endangered our security by empowering terrorist groups like ISIS and al-Qaeda.

While the warfare state has been a big beneficiary of the Republican spending spree, the GOP has hardly neglected the welfare state. Domestic spending has increased seven percent since 2016. Except for a half-hearted attempt to repeal Obamacare and some food stamp reforms that were included in and then dropped from this year’s farm bill, Republicans have not made any effort to roll back or even reform the welfare state.

The farm bill, which Congress is expected to pass this week, will spend as much as 900 billion dollars over the next ten years. Much of that spending will be on taxpayer subsidies for wealthy farmers and even “farmers in name only.”

Trump’s budget deals have been supported by the majority of Democrats. Even those who have called for the president’s impeachment are more than happy to vote with him when it comes to increasing spending and debt. These Democrats are the mirror image of 1990s Republicans who made a big spending deal with President Clinton while simultaneously trying to impeach him.

We suffer from too much bipartisanship when it comes to the welfare-warfare state. This bipartisanship has resulted in a national debt that is rapidly approaching 30 trillion dollars. This will inevitably lead to a major economic crisis. The way to avoid this crisis is to replace the bipartisan welfare-warfare consensus with a new consensus in favor of limited government, peace, free markets in all areas including currency, and auditing then ending the Fed.

]]>Taking “Affordable” Out of the Affordable Care Acthttps://tenthamendmentcenter.com/2018/12/11/taking-affordable-out-of-the-affordable-care-act/ Tue, 11 Dec 2018 14:06:50 +0000http://tenthamendmentcenter.com/?p=28127"This whole thing is designed to push us into a single-payer system."]]>

We generally call it Obamacare, but the official name for the legislation that created the government insurance scheme was The Affordable Care Act. That sounds good, right? We all want affordable. Except that it isn’t.

I have found other alternatives to deal with health coverage, but just out of curiosity, I went through the federal insurance exchange (Healthcare.gov) to see what traditional insurance would cost my wife and me in 2019.

Here are the results.

I’d hate to see how much the unaffordable version would be.

It’s important to note that since my wife and I are both self-employed, the only way to get health insurance is through the exchange. You can go through a private company, but ultimately, they just work through the exchange. No other options exist.

Kentuckians can chose from basically two companies. The photo shows the plan that we would most like choose based on coverages and costs. It’s essentially the same plan we had in 2017. At that time, it cost about $650 per month. It is the most “affordable” option that would provide any meaningful coverage. I put affordable in quotes because it’s not. We don’t qualify for any tax credits.

By the way – none of my doctors take this insurance.

Here’s what Obamacare has actually done. It has made it possible for people on the very bottom to get health insurance, but it’s made it impossible for people like us. All it did was push the problem a little higher up the economic ladder. It’s done nothing to address costs – as evidenced by a 100% premium increase in just 2 years. The system is absurd.

Fortunately, there are free-market alternatives (as free market as you can get in the highly regulated and government controlled mess we currently have) that offer substantial cost savings. At least for the time being.

We’ve been covering the movement to facilitate “direct primary care” practices at the state level.

According to Michigan Capitol Confidential, by removing a third party payer from the equation, medical retainer agreements help both physicians and patients minimize costs. Jack Spencer writes:

“Under medical retainer agreements, patients make monthly payments to a physician who in return agrees to provide a menu of routine services at no extra charge. Because no insurance company stands between patient and doctor, the hassles and expense of bureaucratic red tape are eliminated, which have resulted in dramatic cost reductions. Routine primary care services (and the bureaucracy required to reimburse them) are estimated to consume 40 cents out of every dollar spent on insurance policies, so lower premiums for a given amount of coverage are another potential benefit.”

I have firsthand experience with this model as a member of a direct primary care practice.

I pay $75 a month flat fee. That covers anything that happens within the office. For example, just yesterday, I had a cyst that had become abscessed. I called at 9:30 a.m. At 10:30 a.m., I was in the waiting room. At 10:32, I was taken back. By 10:37, I was talking to the doctor. Try that at your local doctor’s office. The doc performed what was essentially minor surgery. What did it cost me? A few dollars for an antibiotic prescription that was filled in the office. This experience with my old doctor would have cost been billed to an insurance company at an amount almost certainly over $1,000. I would have paid a $40 copay, plus whatever the retail cost of the prescription — and in all likelihood the entire bill as I would not have reached my $9,000 deductible. By the way, getting my monthly meds through my DPC provider saves me $50 a month. So, in effect, I’m paying them $25 a month net for unlimited primary care services. They have also negotiated extremely low costs for lab work and diagnostic test. I had to have an x-ray a couple of months back. It cost me less than $100. Bloodwork costs a few dollars.

So, yes, there are ways to controls costs when you get outside of the absurd insurance system. Why in the hell are we inuring basic, routine healthcare? It’s like getting auto insurance for an oil change. That’s not what insurance is for.

This whole thing is designed to push us into a single-payer system. Because, you know, the government has a great track record at that. Medicare is bankrupt. Trustees project the program’s hospital insurance fund will run out of money in 2026.

I look forward to finding my black market healthcare alternatives in the future.

]]>2019 Outlook: The State of Sound Money in the U.S.https://tenthamendmentcenter.com/2018/12/10/2019-outlook-the-state-of-sound-money-in-the-u-s/ Mon, 10 Dec 2018 13:51:11 +0000http://tenthamendmentcenter.com/?p=28124The Great Recession, coupled with the “Ron Paul Revolution,” prompted a renaissance of the sound money movement in the United States and we expect things to continue to progress in 2019. As countries including Germany, Russia, and China continue to increase their gold holdings, the hegemonic power of Federal Reserve Notes (referred to today as […]]]>

The Great Recession, coupled with the “Ron Paul Revolution,” prompted a renaissance of the sound money movement in the United States and we expect things to continue to progress in 2019.

As countries including Germany, Russia, and China continue to increase their gold holdings, the hegemonic power of Federal Reserve Notes (referred to today as the dollar) is slowly slipping away. Simultaneously, whispers—once relegated to fringe corners—of restoring sound money have become passionate, concerned, and loud.

The destruction of sound money over the past century stems from actions at the federal level, but there are steps which states can take —and even have already taken —to move toward real, sound, constitutional money.

As state legislatures reconvene in the next few weeks, let’s take a look at the current state of play.

Since 2016, sound money has made a splash on the state level. According to the 2018 Sound Money Index, a new ranking of all 50 states on the extent to which they have implemented the pro-sound money policies, there are currently 38 states with an exemption of sales and use tax on the purchase of gold and silver.

Since 2016, legislators in 10 different states have introduced bills, seven of which were signed into law, to restore sound money by eliminating taxes on gold and silver within their borders.

In 2017, a quarter of all states without a sales tax exemption on gold and silver introduced new measures to eliminate the tax against the monetary metals. As states continue to make inroads on the sales tax issue, Tennessee and West Virginia are expected to introduce bills to remove sales and use taxes on sound money in 2019.

Wyoming has recently emerged as a leader on the sound money front. The state legislature overwhelmingly passed the 2018 Wyoming Legal Tender Act and thereby eliminated all tax liability against the purchase, use, and exchange of gold and silver inside the state. Wyoming joined Arizona and Utah as the three states that have also eliminated income taxation on the nominal “gains” or “losses” experienced when selling metals, and Wyoming became the 22nd state to completely remove all sales and use taxes on the purchases of any kind of gold and silver.

Rising to a number two ranking in the Sound Money Index, Wyoming hopes to overtake Utah as the top state for sound money in the country with new legislation for 2019 that would begin to secure the state’s finances with an allocation to physical precious metals.

Wyoming’s state pension and reserve funds are among the most well-funded accounts in the nation, but because of their exposure to dollar-based investments, these funds – like almost all other pension and reserve funds across America — are nevertheless subject to significant risks. Securities, bonds, stocks, and other dollar-denominated assets carry high counterparty, inflation, and interest-rate risks. To hedge against these risks, a group of Wyoming legislators wants the state treasurer to allocate 10 percent of these funds in physical gold and silver. Arizona and Idaho may consider similar measures in the coming months as well.

Meanwhile, on the federal level, a new sound money champion has emerged in Congress.

Representative Alex Mooney (R-WV) introduced the Monetary Metals Tax Neutrality Act of 2018 to remove the federal income tax from the monetary metals. Mooney’s bill is necessary because the IRS has erroneously and unilaterally characterized gold and silver as collectibles and subject them to high taxes as though they were akin to artwork, baseball cards, and beanie babies.

Subjecting constitutional money to a discriminatorily high long-term capital gains rate of 28 percent is unconscionable. Representative Mooney looks to pick up where former Rep. Ron Paul (R-Texas) left off.

While there is still plenty of work to be done, the sound money movement continues to gain strength. Groups like the Sound Money Defense League are finding more and more state and federal legislators willing to join the battle to legalize sound money and reinstall it as the foundation of our monetary system.

]]>Socialism and the Law of the Junglehttps://tenthamendmentcenter.com/2018/12/09/socialism-and-the-law-of-the-jungle/ Sun, 09 Dec 2018 11:03:14 +0000http://tenthamendmentcenter.com/?p=28120When you step onto the soil of backcountry Alaska, you lose your place at the top of the food chain. And you’d better be aware of that because the grizzly bear really likes his position at the top. But then, that’s his “natural” right, isn’t it? There is also a similar natural right that gives […]]]>

When you step onto the soil of backcountry Alaska, you lose your place at the top of the food chain. And you’d better be aware of that because the grizzly bear really likes his position at the top. But then, that’s his “natural” right, isn’t it? There is also a similar natural right that gives a cunning, strong person the power to exert control over others. That’s nature’s way – the law of the jungle.

It’s the lower law.

And that’s socialism.

The Higher Law

The Declaration of Independence proclaimed prior, inherent and inalienable natural rights. The Constitution’s unspoken but dominant point of view is that powerful men too often follow the law of the jungle. So to create equality where none naturally existed, it established a government designed to protect the rights of its citizens in spite of the powerful men who would operate it. Two simple rules made all citizens equal under the law: don’t violate the rights of others and keep your promises. That’s the higher law.

Governments That Embody the Higher Law

Isn’t it interesting how “don’t violate the rights of others and keep your promises” covers every possible circumstance?

Simple and powerful make a thing beautiful, and the higher law is a beautiful thing. If we all lived it, we wouldn’t need any laws that punish. The American Revolution was a reaction to taxation (and other intrusions by the Crown) without representation. King George III was afraid and didn’t keep his promises and his edicts were violations of the rights of free men. Free enterprise, capitalism, and the higher law complement one another. In these systems, force of law is only needed to protect rights. We create laws to threaten and punish rights abusers. In these systems, the citizens delegate some of their rights to the government and consent to obey the laws that the government creates. The Constitution is all about restricting government.

But does the government keep itself within those boundaries?

We only wish.

For example, when the Seventeenth Amendment kicked the states out of the Senate, there was no one left to protect their rights. This, in spite of the fact that the states created the Constitution. We must realize that to whatever degree the government goes beyond the powers the people gave it, to that degree the government is tyrannical.

Governments That Live the Lower Law

Socialism is often advanced as a cure for the “excesses of capitalism”. These include the exploitation of labor, price gouging by monopolistic enterprises, and so forth. Undoubtedly, those are real problems.

The pro-choice people use “termination of pregnancy” as a label for the destruction of a child. In similar fashion, the socialist asks us to focus on the “excesses of capitalism” and the greedy capitalists who create them. But they blame the system rather than the people who abuse it. Capitalism and free enterprise have no inherent excesses or shortages. It is because they are free systems that dishonorable, grasping people can abuse them. So the socialist wants to throw out the system rather than the abusers. That means replacing the system that has made our poorest people wealthy when compared to citizens where free enterprise is only a dream.

This is a good example of how we can become confused when dealing with abstractions that hide the physical realities. The problem is not the system – it is the insatiable greed of the people who abuse it. To overcome these troubles with capitalism, the socialist system of government inserts a planning function. The government creates agencies with goals and the power to pursue them. The people administering these agencies control resources of all kinds, including labor. These are the planners.

It’s Dog Eat Dog at the Top

The agency has plans and procedures to meet its goals, and the reason for their existence is to regulate things. A regulation is always an infringement of rights. Each new rule attains the force of law. The heads of the agencies are the front rank planners, the bureaucrats. These people often rise to their powerful positions by application of the law of the jungle. That makes them comfortable with the method so they have little trouble applying it in their continual rulemaking. By weaving more and more socialism into our system, these agencies become the vehicles that feed power to selfish, greedy and power-hungry people. When socialism gains sufficient control, it becomes full-fledged communism. But the point is that people who can fight their way to the top, become de facto dictators. These are the people, like the grizzly bear, who end up at the top of the control chain. Socialism is finally the law of the jungle.

Free Enterprise: Where Confidence is King

Capitalism took a great leap forward with the ratification of the U.S. Constitution. It happened when people suddenly had the confidence to make investments of all kinds. Inventors knew they could exploit their ideas for 17 years without competition. Money, time and assets went into action. The new nation leaped from conflict and suspicion between the colonies to peace and unprecedented prosperity.

Pure capitalism has no central planning. Individuals and businesses create wealth through free exchange. The results are incredible. “I, Pencil“, a short essay, written by Leonard Read, shows a prime example. No one person knows how to make a pencil from scratch. Yet, the magic of free enterprise harvests the trees, mines the ores for the “lead” and the metal band, etc.

A pencil costs 30 cents, and when you buy one you keep thousands of people employed in its manufacture. Those people are completely unorganized and independent at the top level. Nevertheless, about two billion pencils are used in the United States each year. And no money is wasted on planning, and the huge, awkward, wasteful bureaucracy needed to support it. It is entirely automatic – the miracle of free enterprise. Planning does not grow food, build houses or cars, or wash dishes or provide consumer services. It is a form of pure consumption that only raises the taxes on the pencil.

The Final Questions

In comparing capitalism and socialism: Does capitalism or socialism create the most good for the most people? What system is most susceptible to abuse of the ultimate power: government? Which system gives the individual citizen the best protection from such abuse? And then the big one: why doesn’t our government obey the higher law – keep your promises and don’t violate anyone’s rights?

The Final Warning

Socialism puts the law of the jungle in control of the government. And you had better be aware of that because planners really like their position at the top. Just to make that clear, socialism/communism has exterminated a grizzly 100,000,000 citizens because they didn’t fit into their plans.

]]>Top Five Lies About Nullificationhttps://tenthamendmentcenter.com/2018/12/07/top-five-lies-about-nullification/ Fri, 07 Dec 2018 11:54:00 +0000http://tenthamendmentcenter.com/?p=28118We hear them over, and over, and over again — the same, tired, worn out misconceptions or downright lies about nullification. Historians, legal scholars and journalists all parrot these fallacies every time anybody proposes nullification. They use these misconceptions as a way to derail efforts to stop federal overreach and limit the power of the general […]]]>

We hear them over, and over, and over again — the same, tired, worn out misconceptions or downright lies about nullification.

Historians, legal scholars and journalists all parrot these fallacies every time anybody proposes nullification. They use these misconceptions as a way to derail efforts to stop federal overreach and limit the power of the general government. Some of them sound plausible — especially if you were a product of government schools. But all of them are wrong.

Following are the top five lies about nullification and a brief overview of why they’re wrong.

1. The Supremacy Clause Prohibits Nullification

This probably ranks as the most common nullification objection. According to the naysayers, the Constitution’s supremacy clause makes every federal edict “the supreme law of the land.” As such, a state has no authority to challenge it in any way. This erroneous assertion ignores the most important words in the clause. Only the Constitution and laws “made in pursuance thereof” qualify as supreme. Any federal act not in pursuance of the Constitution is, as Alexander Hamilton put it, “void.”

One does not obey or enforce a “voided” act. In fact, James Madison asserted that a state is “duty bound” to “interpose” when the federal government attempts to operate outside of its constitutional bounds. The supremacy clause does not undermine nullification. It actually enforces it. To learn more, click HERE and HERE,

2. John C. Calhoun Invented Nullification

Virtually every mainstream article about nullification invokes the name “John C. Calhoun.” Most of them will assert that he came up with the idea for state nullification. This, of course, is meant to tie the principles of nullification to slavery, as the South Carolina senator was an unapologetic supporter of the institution.

It’s true that Calhoun was a central figure in the so-called “nullification crisis” in the early 1820s and 1830s. But this had nothing to do with slavery, and he did not come up with the idea of nullification.

In fact, Thomas Jefferson and James Madison first formalized the principles in the Kentucky and Virginia Resolutions two decades earlier in response to the passage of the Alien and Sedition Acts. These laws enacted by Pres. John Adams in 1798 were clear violations of the due process clause, the First Amendment and the Tenth Amendment. Jefferson and Madison both insisted a state had both a right and duty to step in and stop the overreach. It was Jefferson who insisted nullification is “the rightful remedy.”

“Where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits.”

Jefferson and Madison were working on a strategy to implement nullification after the Kentucky and Virginia legislatures passed their respective resolutions, but Jefferson’s ascendancy to the presidency and the subsequent end of the Alien and Sedition Acts rendered the issue moot.

Obviously, this has nothing to do with Calhoun. The principles were well-established long before Calhoun invoked them. But unsurprisingly, articles about nullification almost never mention Jefferson or Madison. To learn more, click HERE, HERE, HERE and HERE.

3. James Madison Opposed Nullification

Despite the fact that James Madison penned the Virginia Resolutions and was one of the first people to formalize the principle of nullification, pundits invoke a second common misconception claiming Madison actually opposed the idea. They rely on arguments he made during the aforementioned nullification crisis in the late 1820s and early 1830s, but they take his comments out of context.

In fact, Madison opposed a specific nullification scheme developed by Sen. John C. Calhoun. He never renounced the general principles.

Calhoun built on the ideas outlined in the Kentucky and Virginia Resolutions and claimed that if a single state nullified a federal act, it was annulled within that state and it legally bound other states to honor its action until three-quarters of them overruled the nullification.

Madison’s anti-nullification comments specifically addressed this scheme. But Madison did not condemn the more general principles of state nullification. In fact, Madison reaffirmed the idea even while opposing Calhoun’s version, writing, “Thus the right of nullification meant by Mr. Jefferson is the natural right, which all admit to be a remedy against insupportable oppression.” To learn more, click HERE.

4. The Supreme Court Decides Constitutionality

Even if they admit that federal actions violating the Constitution have no legal force, modern pundits will always claim that it’s the Supreme Court’s job to determine the constitutionality of an act — not a state. They will usually refer to John Marshall’s famous opinion in Marbury v. Madison to bolster their case.

In effect, these people argue that the federal government determines the power of the federal government. Thomas Jefferson pointed out the absurdity of this notion in the Kentucky Resolutions.

“The government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”

In the Report of 1800 (a defense of the Virginia Resolutions) Madison also insisted that the Supreme Court only had the final say in a dispute between the three branches of the government, but not in a dispute over federal power in relation to the states.

“The States then being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and consequently that as the parties to it, they must themselves decide in the last resort, such questions as may be of sufficient magnitude to require their interposition.”

As far as Marshall’s opinion in Marbury goes, most people take what he said out of context. And regardless, it’s ludicrous to argue that the Supreme Court decided it has the final say, therefore it does. To learn more click HERE, HERE, HERE, and HERE.

5. Nullification Supported Slavery

The final common misconception trumpeted over and over again is that nullification was all about slavery. Again, this is meant to tar the idea as “racist.” Actually, it nullification was about slavery, but not in the way the mainstream wants you to believe.

In fact, nullification was never used to support slavery. Slavery was the law of the land according to the federal government. There was nothing for slavers to nullify.

But abolitionists did use the principles of nullification and state powers to fight the fugitive slave acts.

The Fugitive Slave Act of 1850 was enacted to aid southern slavers in their efforts to reclaim their “property.” It allowed a slave owner, or his representative, to haul a black person back South into slavery merely on his world. It denied an accused runaway any semblance of due process. It also compelled citizens to assist in fugitive slave rendition if ordered to do so and made assisting suspected runaways a federal crime with stiff penalties.

But at the state level, northerners rebelled. They asserted state sovereignty and passed aggressive personal liberty laws to thwart execution of the act. In support of their stand, apologists appealed to the notion of “states’ rights,” sometimes directly quoting arguments advanced by John C. Calhoun during the “Nullification Crisis” decades earlier. These abolitionist efforts were so successful, South Carolina and several other seceding states listed northern state nullification of the fugtiive slave laws as justification for leaving the union — and they used the word nullification.

So, nullification was “about slavery,” but it never supported slavery. To Learn more, click HERE.

Court challenges to the facetiously named “Affordable Care Act” — “Obamacare” — are more important than ever.

Asked about the constitutional basis for Obamacare, Democratic Michigan Rep. John Conyers — a leading supporter — was unable to name any. Conyers’ fumbling response was caught on video. It became symbolic of the contempt Obamacare’s promoters showed for the Constitution.

But more than eight years after the measure passed, opponents still have not sought judicial review of most of its constitutional defects.

Two factors argue for more challenges to the law’s constitutionality. First, although Congress has repealed the mandate that individuals purchase government-approved health insurance, it is now clear that Congress will not free us from the rest of the law.

Second, with the Supreme Court fortified by the addition of Justices Neil Gorsuch and Brett Kavanaugh, it may be willing to protect the Constitution against the failed and unpopular scheme.

The media sometimes claim the Supreme Court “upheld” Obamacare. In fact the court has addressed the constitutionality of only two of its parts: the Medicaid mandate on the states, which the court struck down; and the penalty on individuals for not purchasing health insurance, which Congress has since repealed. In another case, six justices rescued the measure from its own sloppy drafting, although not on constitutional grounds.

Even the Supreme Court’s decision sustaining the penalty was a very close call. The justices first ruled that the penalty exceeded congressional power under both the Constitution’s Commerce Clause and Necessary and Proper Clause. They then held it to be a constitutionally-permissible “indirect tax,” but only by a 5-4 margin.

There have been reams of speculation as to why the majority voted to uphold the penalty. I believe the most charitable answer is also the most persuasive one: The court simply did not have the information it needed to decide the issue correctly.

There is clear historical evidence as to what the Constitution means by the terms “tax,” “direct tax,” and “indirect tax.” But those involved in the case presented little of this evidence to the court. The court, therefore, proceeded on what little it had, and erroneously classified the penalty as an indirect tax. (Ideally, though, the justices should have ordered a more thorough briefing on the tax issue.)

The penalty is gone, but the remainder of Obamacare still plagues us. There are several legal theories available for attacking the remainder. One is that in passing Obamacare, Congress violated the Constitution’s Origination Clause. (There already have been some Origination Clause challenges, but they were unsuccessful because the litigants misunderstood what the clause permits and prohibits.)

The Origination Clause states that “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” With important modifications, the Origination Clause applied to Congress a legislative rule borrowed from the British Parliament and from several state legislatures.

However, the Senate (unlike the British House of Lords) is not bound to simply accept or reject whatever the House passes. The Senate may “amend” tax bills before passing them.

The House must approve any amendments.

The Senate’s power to “amend” permits it to change the bill as to any subject matter it already covers. But adding new subject matter, such as adding regulations or appropriations to a pure revenue bill, is outside the scope of the Senate’s power to amend.

The Senate created Obamacare by seizing a minor revenue bill that had passed the House, stripping out its contents, inserting new taxes (which it had the power to do), and adding some permanent appropriations and a Goldbergian regulatory scheme — which it had no power to do.

A purported “law” passed in violation of the Origination Clause is void. However, for a court to invalidate such a measure, litigation must be brought by the proper plaintiffs and on the correct legal theory. Previous Origination Clause plaintiffs lost because they attacked Obamacare’s taxes instead of its regulations. Plaintiffs suing for relief from regulations that harm them may have more success.

]]>States Need to Step Up and Protect Medical Marijuana Users from Federal Gun Lawshttps://tenthamendmentcenter.com/2018/12/03/states-need-to-step-up-and-protect-medical-marijuana-users-from-federal-gun-laws/ Mon, 03 Dec 2018 20:40:43 +0000http://tenthamendmentcenter.com/?p=28116While most people using marijuana in states that have legalized it don’t have to worry about federal prosecution, it’s a different story for gun owners. As of December 1, 2018, after years of attempting to persuade our state legislature to recognize the need for medical marijuana to be made available for patients, Utah’s medical marijuana […]]]>

While most people using marijuana in states that have legalized it don’t have to worry about federal prosecution, it’s a different story for gun owners.

As of December 1, 2018, after years of attempting to persuade our state legislature to recognize the need for medical marijuana to be made available for patients, Utah’s medical marijuana initiative went into effect. Conner Boyack and Libertas Institute tirelessly spearheaded the charge to accomplish what the legislature would not do, and now, according to Boyack, “patients can begin safely using medical cannabis, knowing they are legally protected in doing so.”

But are they all really completely protected?

While marijuana is legal in some form in 33 states and Washington, D.C. and state action has nullified in effect federal prohibition, the feds refuse to relinquish their stranglehold on marijuana.

Despite widespread use and acceptance of marijuana across the country, 21 United States Code Section 811 sets forth provisions of the Controlled Substances Act (CSA). Pursuant to federal law, marijuana is considered a Schedule One drug, in a class with substances such as cocaine, heroin and LSD.

Nowhere in the Constitution can one find the authority for Congress to regulate any controlled substance. Nor can one find the authority to regulate firearms; further, the Second Amendment was added to instill confidence in the people that the general government would not regulate firearms at all. Why am I raising the issue of firearms? I seem to be the only one raising this issue, but I advise those who may need or have a family member in need of medical marijuana to fully understand the federal government’s views on the matter. I refer you to the Bureau of Alcohol, Tobacco, Firearms and Explosives open letter to all Federal Firearms Licensees, henceforth “FFL.” I will sum up their position: if you are lawfully using marijuana, medical or otherwise, the feds say you may not purchase a firearm OR ammunition. Period. Case closed.

If you purchase a firearm from an FFL, you will be presented with the Firearms Transaction Record form 4473, which you must, under penalty of perjury, answer fully and truthfully. You may see it for yourself HERE.

Question 11(c) asks prospective gun purchasers if they are unlawfully using any controlled substances. You think, “Hey, I can answer ‘no,’ as marijuana is now legal in my state. Immediately following the inquiry is the following admonition (in bold letters):

“Warning: The use or possession of marijuana remains unlawful under Federal law, regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.”

Not surprisingly, in 2016, the U.S. Ninth Circuit Court of appeals ruled that this restriction does not violate the Second Amendment.

Here in Utah, one has the option to legally purchase a firearm privately, as opposed to doing so through an FFL. That being said, you are still breaking federal law if you are a patient using medical marijuana, or even providing to a suffering patient, as possession will disqualify anyone from such a purchase. So our choices are: seek relief and relinquish firearms rights; become a law-breaker, or continue to suffer.

Thus far, there are no assurances that Utah would protect its suffering citizens from federal overreach, as happened in California: I refer you to Gonzales v. Raich, where the Supreme Court upheld federal law prohibiting the growth and personal use of marijuana, even if legal pursuant to state law. Angel Raich was legally using medical marijuana pursuant to California law, passed under Proposition 215.

Mr. Boyack informed me that this new law will not affect those with Concealed Carry Weapons permits (CCWs) at all. From the perspective of the State of Utah, he may be correct – for now. But remember, anyone seeking a permit will be subject to a background check by the Department of Justice, and we already know medical records are accessible to the federal government. I anticipate them being denied in the future on this basis. There is already a precedent for this in Hawaii.

And what about guns we already have?

In December of 2017, the State of Hawaii demanded those with the medical marijuana cards turn in their guns. As Utah’s demographics change, so will the nature of its elected officials, and there is nothing to say that eventually the same couldn’t happen here.

Why is this blatant and consistent federal overreach tolerated? Unfortunately, people still consider federal law to be supreme, this due to a misinterpretation of the Supremacy Clause, found in Article VI, Clause 2. It reads, in relevant part, as follows:

“This Constitution, and the Laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land…” (Emphasis added)

So, according to the plain text of the Supremacy Clause, federal marijuana and firearm laws must be made in pursuance to the Constitution – meaning, the States must have delegated the power to regulate them both. They did no such thing. Accordingly, the Tenth Amendment thus becomes operative:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

My point here is this: if you are a firearms owner seeking relief via medical marijuana you are violating federal law. The federal law is in direct violation of the Tenth Amendment. I have seen no states thus far willing to protect their citizens from exercising their lawful rights. If you are supplying medical marijuana to someone who is ill and has a card, you are violating federal law. Your transactions will be recorded and may be used against you at any given time.

De facto nullification is just the first step; ultimately, it is up to the states to interpose in federal overreach of both firearms and marijuana. To do so would be entirely consistent with the purpose and intent of the Constitution.

]]>CBD Is (Illegal) Everywherehttps://tenthamendmentcenter.com/2018/11/30/cbd-is-illegal-everywhere/ Fri, 30 Nov 2018 23:17:45 +0000http://tenthamendmentcenter.com/?p=28112The other day, I was walking past a little strip mall in my Lexington, Kentucky, neighborhood and I saw a sign proclaiming “CBD Sold Here!” Now it doesn’t surprise me to see CBD products sold on every corner in big cities like Los Angeles and New York, but when you start seeing it in small-town, […]]]>

The other day, I was walking past a little strip mall in my Lexington, Kentucky, neighborhood and I saw a sign proclaiming “CBD Sold Here!” Now it doesn’t surprise me to see CBD products sold on every corner in big cities like Los Angeles and New York, but when you start seeing it in small-town, middle-America, you know it’s pretty much everywhere.

And believe me — it is pretty much everywhere. As I reported not too long ago, CBD has gone mainstream – and it’s a perfect example of nullification in action.

Cannabidiol (CBD) is derived from cannabis – generally in the form of industrial hemp. It has proven effective in treating a number of medical conditions, including seizures, pain and anxiety.

The New York Times recently ran a story headlined Why Is CBD Everywhere? highlighting the proliferation of CBD products across the nation and its exploding popularity. A New York advertising executive called it “the chemical equivalent to Bitcoin in 2016.”

“It’s hot, everywhere and yet almost nobody understands it.”

The article noted that “with CBD popping up in nearly everything — bath bombs, ice cream, dog treats — it is hard to overstate the speed at which CBD has moved from the Burning Man margins to the cultural center.”

“The tsunami of CBD-infused products has hit so suddenly, and with such force, that marketers have strained to find a fitting analogy. Chris Burggraeve, a former Coca-Cola and Ab InBev executive, called it the ‘new avocado toast,’ in an interview with Business Insider.”

I’ve discussed the medicinal value of CBD in previous posts. It isn’t just some kind of snake-oil fad. Serous researchers are touting the power of cannabidiol. NYU School of Medicine assistant professor Dr. Esther Blessing is heading up a study on CBD as a treatment for PTSD and alcohol abuse. She called CBD “the most promising drug that has come out for neuropsychiatric diseases in the last 50 years.”

“The reason it is so promising is that it has a unique combination of safety and effectiveness across of very broad range of conditions.”

According to the Times, CBD is also becoming huge in the beauty industry.

Everywhere you turn, you find CBD products sold right out in the open just like any other commercial product. There’s just one difference. It’s all illegal. At least according to the federal government, it is. As the NYT points out, “As with all cannabis products, the federal government categorizes CBD products other than Epidiolex as a Schedule 1 drug, like heroin, according to the Drug Enforcement Administration.”

Schedule 1 drug means illegal — as in total prohibition.

Don’t miss the significant point here. CBD has the same legal status as heroin according to the federal government. And yet you can buy it pretty much everywhere. So for those interested in taking less risk, kratom is legal and is known to allieviate similar symptoms, go to Best Kratom and try for free. The good news is that most people think this wont last and that a reform will be met soon enough.

People in the cannabis industry who argue that CBD is legal over the counter generally rely on the “hemp amendment” tacked onto the 2014 farm bill. But the law only legalized hemp production for limited purposes. It “allows State Agriculture Departments, colleges and universities to grow hemp, defined as the non-drug oilseed and fiber varieties of Cannabis, for academic or agricultural research purposes, but it applies only to states where industrial hemp farming is already legal under state law.”

In 2016, the U.S. Department of Agriculture and Drug Enforcement Agency released a “statement of principles” to guide interpretation of the hemp section in the farm bill. It states, “The growth and cultivation of industrial hemp may only take place in accordance with an agricultural pilot program to study the growth, cultivation, or marketing of industrial hemp established by a State department of agriculture or State agency responsible for agriculture in a State where the production of industrial hemp is otherwise legal under State law.”

In short, the current federal law authorizes farming of hemp – by research institutions, or within state pilot programs – for research only. Farming for commercial purposes by individuals and businesses remains prohibited.

The statement of principles also asserted that industrial hemp programs are limited to fiber and seed. It didn’t mention CBD oil or other edible hemp products. The DEA has interpreted that to mean CBD and hemp food products remain illegal. According to the DEA, CBD cannot be sold under any circumstances. An Indiana TV station interviewed DEA spokesman Rusty Payne, who reiterated the agency’s position.

“It’s not legal. It’s just not.”

Payne says cannabis plants are considered a Schedule I controlled substance, and medicinal oils derived from cannabis plants are illegal according to two federal laws: the Controlled Substance Act and the Food, Drug and Cosmetic Act. He said confusion surrounding the Agricultural Act of 2014 (better known as the “Farm Bill”) is frequently cited as legal justification by those who want to manufacture, sell or use CBD oil. The DEA believes the Farm Bill permits only CBD research — not CBD marketing and sales.

“Anybody who’s in violation [of the federal laws] always runs that risk of arrest and prosecution,” he said.

Nevertheless, people across the country are selling, buying and using CBD, and nullifying the federal law in practice and effect.

And the feds aren’t doing anything about it. The Times quoted DEA spokeswoman Barbara Carreno, who admitted that the agency isn’t enforcing marijuana or CBD prohibition.

“We’re not swatting joints out of hands in Hilo, Hawaii, and we’re not going to focus on somebody who is buying lotion or ice cream that has CBD in it.”

The fact is, they can’t. The federal government lacks the personnel and resources to crack down on CBD. Not to mention the PR nightmare it would create. State action has effectively nullified cannabis prohibition, as the fact that I can walk a block and pick up some CBD shows.

When Donald Trump became president, he swore an oath to uphold the Constitution and enforce federal laws “faithfully.” James Madison, who was the scrivener at the Constitutional Convention, insisted on using the word “faithfully” in the presidential oath and including the oath in the body of the Constitution because he knew that presidents would face the temptation to disregard laws they dislike.

The employment of the word “faithfully” in the presidential oath is an unambiguous reminder to presidents that they must enforce federal laws as they are written, not as presidents may wish them to be. Earlier this month, Trump succumbed to Madison’s feared temptation, and last week, a federal judge corrected him. Then an uproar ensued.

Here is the back story.

Federal immigration laws, as well as treaties to which the United States is a party, require that foreigners who are seeking asylum here may enter the United States across any border they can reach, whether at a designated portal or not. If they have not entered through a designated portal, they can be brought, without a warrant, to a portal for processing.

The feds must process all asylum applications from migrants who make prima-facie cases for asylum. Once an application has been made, the feds may release the migrant (as President Barack Obama did) into the general population, or they may detain the migrant (as President Trump has done), pending a trial before a federal immigration judge.

At the trial, the migrant has the burden of proving worthiness for asylum. That worthiness can be based only on government animosity toward the migrant or government failure to protect human rights and enforce property rights in the home country. If the migrant prevails at trial, asylum is granted, and a green card is issued. If not, deportation follows.

On Nov. 9, President Trump issued a proclamation directing the Border Patrol to deny entry to all migrants, including those with legitimate asylum claims, unless they come through government portals where Border Patrol personnel are present to address their applications. Though this sounds reasonable, it directly contradicts federal law, which expressly permits migrants to enter the U.S. anywhere.

When groups of migrants challenged Trump’s order in federal court in San Francisco, Judge Jon Tigar prevented the government from complying with the president’s proclamation. The judge did not make any value judgments, nor was he critical of the president’s motivation. Rather, he ruled that the law is clear: Immigrants seeking asylum may enter anywhere, and the president cannot change federal law; only Congress can.

Trump dismissed Judge Tigar’s ruling as meritless because the judge was appointed to the bench by former President Obama. The implication in Trump’s words was that Judge Tigar ruled against him for political reasons. In reality, Judge Tigar did what any judge would do; he prevented the president from changing federal law and required him to enforce the immigration laws as Congress has written them — and to do so faithfully.

Trump should not be surprised when judges rule against him when he takes the law into his own hands. He cannot close the border without an act of Congress and a lawful withdrawal from two treaties. He cannot refuse to accept asylum-seekers based on where they enter. He cannot use the military to enforce immigration laws — his own secretary of defense called this a “stunt” — without violating other federal laws.

Judge Tigar did not necessarily inject his personal ideology into his ruling (any more than the “Trump judge” who ruled for CNN and against the president did last week); he merely applied long-standing federal law. There is no room for ideology at the trial level. I know that personally from my own experience as a trial judge in New Jersey.

Shortly after Trump publicly blasted Judge Tigar, Chief Justice John Roberts came publicly to Tigar’s defense. The chief justice announced that there are no Obama or Trump or Bush or Clinton judges, just hardworking defenders of the Constitution. That comment was met by two more from Trump, who disputed it directly.

Who is correct?

There is no question that many federal judges are nominated by presidents because of shared views on public policy. But though this is ordinarily the case for appellate judges and, in the modern era, is always the case for Supreme Court justices, it is rarely the case for trial judges, of which Judge Tigar is one.

Trial judges do not make public policy. They apply statutes as written by Congress, pursuant to precedent as set forth by the Supreme Court and the intermediate appellate court to which they are subject.

Yet we know that there is a kernel of truth in the president’s accusation and that there is a kernel of tongue in cheek in the chief justice’s contention. Surely, Justice Ruth Bader Ginsburg would view Judge Tigar’s ruling more favorably than Justice Samuel Alito would. Ginsburg, a Clinton appointee, would probably interpret the law literally, and Alito, a George W. Bush appointee, would probably give the president some wiggle room.

Yet the spectacle of the president and the chief justice disputing constitutional values is not a happy one. Here’s why. Under the Constitution, the three branches of the federal government — legislative, executive and judicial — are equals. The judicial branch is anti-democratic. Federal judges shouldn’t care what the public thinks. Their job is to apply the Constitution and interpret federal laws as they have been written, come what may.

For these reasons, federal judges and justices have life tenure. They do not need and should not seek public approval. And they should not enter public disputes — other than by their judicial rulings — for by doing so, they can appear as political as those in the other two branches.

]]>Is There a “Constitutional Right” to Homeschool?https://tenthamendmentcenter.com/2018/11/25/is-there-a-constitutional-right-to-homeschool/ Mon, 26 Nov 2018 01:11:25 +0000http://tenthamendmentcenter.com/?p=28107Some believe the feds should protect this "right," while others say they should just get out of the way.]]>

A concurring opinion published in a case decided recently by the Georgia Court of Appeals asserts that parents have a constitutionally protected right to homeschool their children.

In his concurring opinion in the child-custody case of Borgers v. Borgers, Judge Stephen Dillard, chief judge of the Georgia Court of Appeals, delivered an impassioned and erudite defense of absolute parental sovereignty over their children’s training.

“The liberty interest of parents to direct the upbringing, education, and care of their children is the most ancient of the fundamental rights we hold as a people,” Judge Dillard declared.

Dillard’s concurrence continued in an equally compelling tone:

This cherished right derives from the natural order, preexists government, and may not be interfered with by the State except in the most compelling circumstances. And while I agree with the majority that the trial court lacked the authority to alter the parties’ custody agreement in this contempt action, I write separately to express my serious concerns with the court’s decision to summarily substitute its judgment regarding the child’s education for the mother’s without identifying evidence of the compelling circumstances necessary to interfere with her constitutional parental rights. In doing so, the trial court failed to give sufficient consideration to the federal and Georgia constitutions, both of which afford significant protection of a parent’s right to the care, custody, and control of his or her child — which undoubtedly includes the right to make educational decisions.

Curiously, there are those in the conservative community who, although agreeing with Dillard’s reasoning on policy grounds, refuse to recognize any constitutional protection for parents’ educational prerogative.

Legal expert and UCLA law professor Eugene Volokh penned a blog post on October 23 publicizing Judge Dillard’s opinion. In commenting on the concurrence, Volokh vaguely shared his own opinion on the legal status of parents who homeschool.

“I personally think that defining the scope of parental rights is a complicated matter, and while I support the right to homeschool on policy grounds, I’m not positive that it should be recognized as a constitutional right,” Volokh explains.

Not that it matters in the context of constitutional rights, but a Supreme Court decision handed down in 1925 is similarly difficult to define.

In the case of Pierce v. Society of Sisters, the Supreme Court held:

No question is raised concerning the power of the state reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.

Notice that the Court doesn’t presume to protect the right of parents to control their children’s education. The justices, in fact, make a judicial grant of authority to “the state” to “reasonably regulate all schools.” That would include, one assumes, schools that are conducted at home, rather than at a designated school building.

Some states exercise this presumed power by treating homeschooling parents as if they were state employees, as are public- and charter-school teachers. Not only do parents not get paid from the state coffers, but parents have their paychecks raided by the state so those coffers are full enough to fully fund the salaries of scores of teachers.

Among many homeschool families and advocates, the lack of a constitutionally protected right to school choice is a hole in the Constitution that needs to be filled with an amendment.

Pointing to a statement made in November 2015 at an event at Georgetown University by the late Supreme Court Justice Antonin Scalia that the right to homeschool is “simply not in the Constitution,” former director of federal relations for the Home School Legal Defense Association (HSLDA) William Estrada warned homeschool families that “we do indeed need an amendment to the U.S. Constitution that enshrines the current Supreme Court precedent protecting parental rights in the black-and-white text of the U.S. Constitution.”

A correct understanding of the Constitution — its history, structure, and federal function — would reveal that the right of parents to homeschool their children should NOT be guaranteed by the Constitution.

The Constitution was created by the states to carry out a “few and defined” delegated powers, while the states would retain “numerous and indefinite” powers. The federal authority would extend only to “external objects, as war, peace, negotiation, and foreign commerce.”

The 10th Amendment explicitly excludes the federal government from functioning in any area not placed within its purview by the states in the Constitution.

Notwithstanding these straightforward tenets of constitutional construction, there is no denying that the national authority has repeatedly attempted to break down the boundaries placed by the Constitution around its power. From the beginning, our elected representatives have overstepped the limits drawn around their rightful authority and have passed laws retracting, reversing, and redefining the scope of American liberty and state sovereignty, and those efforts have invaded the formerly sacrosanct precinct of the family home.

Americans determined to exercise unqualified control of their children’s education (and every other aspect of their lives) have a sacred duty to tirelessly resist such advances and exercise all our natural rights to restrain government and keep it within the limits set by the Constitution.

So, Scalia was right: There is no constitutional right to homeschool. That isn’t because parents don’t have that right, but because the U.S. Constitution was not designed to define the limits of our rights, but to define the limits of the power of the federal government.

EDITOR’S NOTE: This article was originally published at The New American Magazine and reposted here with permission from the author.

]]>20 Things Republicans Could Have Done but Didn’thttps://tenthamendmentcenter.com/2018/11/23/20-things-republicans-could-have-done-but-didnt/ Fri, 23 Nov 2018 14:38:47 +0000http://tenthamendmentcenter.com/?p=28104Another Republican majority has come and gone. And with nothing to show for it—except a massive welfare state, perpetual war, a federal budget over $4 trillion, and a national debt over $21.7 trillion.]]>

Another Republican majority has come and gone. And with nothing to show for it.

Although Republicans controlled both Houses of Congress under a Democratic president during two years of Harry Truman’s presidency, the last six years of Bill Clinton’s presidency, and the last two years of Barack Obama’s presidency, there have been three times in recent history when the Republican Party had absolute control of the government.

The Republicans controlled both Houses of Congress during the first two years of Republican Dwight Eisenhower’s presidency.

The Republicans controlled both Houses of Congress for over four years during the presidency of Republican George W. Bush.

The Republicans have controlled both Houses of Congress since the presidential inauguration of Republican Donald Trump. However, because of Democratic gains in the recent midterm election, Republicans will lose control of the House when the next Congress (the 116th) meets in January.

Republicans under Eisenhower could have repealed the New Deal. They didn’t. And the road was paved for a massive welfare state.

Republicans under Bush could have repealed the Great Society. They didn’t. And the welfare state was expanded yet again.

Republicans under Trump could have repealed Obamacare. They didn’t. And the welfare state became inexorably entrenched.

Economist Walter Williams of George Mason University recently pointed out the terrible truth about government spending:

Tragically, two-thirds to three-quarters of the federal budget can be described as Congress taking the rightful earnings of one American to give to another American—using one American to serve another. Such acts include farm subsidies, business bailouts, Social Security, Medicare, Medicaid, food stamps, welfare, and many other programs.

This is just as true under Trump and his Republican majority in Congress as it ever was.

In baseball it is three strikes and you’re out, but not in politics. In the months before the next election, Republicans will tell Americas that they should vote Republican so they can regain the House of Representatives in order to rein in government spending, reduce the size of the government, restore the Constitution, cut government waste, eliminate unnecessary regulations, fix the economy, and make America great again. And millions of Americans will believe them, vote for them, and give them yet another chance to not only do none of these things, but to make things even worse.

But of course, it doesn’t have to be like this. Republicans under Eisenhower could have done something. Republicans under Bush could have done something. Republicans under Trump could have done something. In fact, Republicans could have done almost anything.

So, what could the Republicans have done?

Could Republicans have eliminated Medicaid? Of course. Could Republicans have eliminated food stamps? Certainly. But let’s be realistic. Although Republicans could have at least made some real cuts to these programs, there is no way that they would ever try to abolish them. Even if they actually had some philosophical aversion to these programs, it would be politically inexpedient for them to try to abolish them.

What then, could the Republicans have actually done? What is the best we could have hoped for?

Here are twenty reasonable things that the Republicans could have done:

Repeal Obamacare in its entirety

Abolish the National Endowment for the Arts

Abolish the National Endowment for the Humanities

Eliminate refundable tax credits

Eliminate the Department of Education

Stop cash welfare payments

Cease funding any scientific research on climate change

Means test all welfare programs

Abolish the TSA and returned airport security to the private sector

Eliminate CAFE standards

Allow people to sell their bodily organs upon their death

Defund Planned Parenthood

End the federal war on marijuana and leave the issue up to the states

End the embargo against Cuba and allow Americans to freely travel there

Eliminate all foreign aid

End all restrictions on the production of hemp

Eliminate all funding for manned and unmanned missions to Mars

Privatize the National Railroad Passenger Corporation (Amtrak)

Abolish the Corporation for Public Broadcasting

End all farm subsidies

And Republicans certainly could have eliminated Daylight Saving Time.

Not only could Republicans have done these things, they could have done them the first month that they had absolute control of the government. But they, as usual, did nothing.

Republicans are worse than useless. They are welfare statists just like Democrats. There is not a dime’s worth of difference between the two major parties. Libertarians who hold their nose and vote Republican when there are no libertarians on the ballot are wasting their vote.

Another Republican majority has come and gone. And with nothing to show for it—except a massive welfare state, perpetual war, a federal budget over $4 trillion, and a national debt over $21.7 trillion.

]]>The U.S. Does not Have a Free Market Health Care Systemhttps://tenthamendmentcenter.com/2018/11/21/the-u-s-does-not-have-a-free-market-health-care-system/ Wed, 21 Nov 2018 16:30:30 +0000http://tenthamendmentcenter.com/?p=28101let's face it. A great many voters, whether Republican or Democrat, want to hear the magic words "safety net" when it comes to health care.]]>

US states continue to expand Medicaid, and it’s happening even in so-called “red states.” CNBC, for instance, reports how voters in “red states” Utah, Nebraska, and Idaho all approved ballot issues to expand Medicaid under new Obamacare provisions. Meanwhile, the voters in these states also handed control of state government to Republican governors and legislators.

At the state level at least, the expansion of government healthcare has now become pretty much a given in nearly all states outside of the South.

It continues to be a big issue in state-level elections, such as in Colorado, where the Republican candidate — who lost the election — spent much of his campaign condemning expansion of “government-run” healthcare.

But let’s face it. A great many voters, whether Republican or Democrat, want to hear the magic words “safety net” when it comes to health care. This is why even voters in Idaho, voted to — as they saw it — expand the healthcare safety net.

The recent expansions of Medicaid, however, are just the latest step in a quickly expanding government-funded healthcare apparatus that has been growing for decades. Moreover, the government-sector on health is now so large, as to consume half of all healthcare spending in the United States.

Using data from the OECD’s 2015 Health Statistics report, we find government spending in the United States accounted for 48% of overall health spending, compared with an OECD average of 73%:

And that was in 2013. It’s a fairly safe bet that with the growing costs of Medicare and Medicaid, government healthcare spending has grown to at least equal private-sector spending.

It’s also worth noting, that government-sector spending (mostly Medicaid, Medicare, VA, etc.) alone is similar to or greater than the same measure in most other OECD countries, and is on a par with Germany, Switzerland, Belgium, Austrian, New Zealand, and others.

According to the World Health Organization, per capita government spending on healthcare is the fourth highest in the world:

Needless to say, the idea that the US has a “free market” in health care is pure fantasy. The so-called safety net is huge, expensive, and dominates the industry. With so many Baby Boomers going on Medicare in the near future, and with continued expansion of Medicaid, it won’t be many more years before a much larger majority of healthcare spending is done by governments.

This, however, won’t mean a fundamental change in the the US healthcare system, but a continuation of an established trend.

I don’t say this to advocate for more government spending on health care, but merely to point out that the US has not embarked on any sort of new road it hasn’t already been traveling for years.

You Don’t Need a Single-Payer System to Get to Single-Payer Levels of Health Spending

As it is, the US is moving toward levels of public spending that will rival those of some nations that aren’t exactly known for any devotion to “free market” healthcare.

As it is now, government-sector spending in the US is similar to that of Chile (which, by the way, has a slightly higher life expectancy).

Given the growth of Medicare benefit spending has nearly doubled over the past decade, it’s not impossible to imagine overall public spending rising to levels we now see in some countries with so-called “socialized” medicine.

After all, contrary to the widely-held misconception that all healthcare (including prescription drugs) in Canada is “free,” nearly 30 percent of all healthcare spending takes place in the private sector — mostly to cover prescription drugs, dental care, and other types of care not covered by the state.

Moreover, healthcare in the US offered by ostensibly private sector firms in the US is done overwhelmingly through heavily regulated and highly bureaucratic insurance schemes.

This sort of insurance is so widespread that fewer Americans purchase health services out-of-pocket than in most other OECD countries. While Swiss, Italian, and Australian out-of-pocket expenses constitute at least one-fifth of health spending, the total is only 12 percent in the US. The US is well below the OECD average of 19.5 percent. The idea that millions of Americans are handing over huge sums of cash out-of-pocket to afford basic medical procedures is fiction.

At this point, the debate isn’t over a choice between a market healthcare system or a government healthcare system. We’re now just really talking about how much the government sector should grow as a component of all health spending.

Now that the federal government is, by far, the largest single payer for healthcare purchases in the US, we have to openly admit that there is no longer any functioning market pricing system in healthcare. The industry is now dominated by government contracts, government spending, and government regulations on healthcare services.

Of course, prices continue to skyrocket in the US. But this is not because there is too much “market competition,” but because healthcare is heavily subsidized by various government interventions. As is always the case, subsidized goods and services experience growing demand as the cost — as perceived by consumers — goes down. This happens everywhere that healthcare is subsidized, but US policymakers, so far, have lacked the stomach for controlling costs by denying care to people, or making them wait in long queues — as is done in other government-controlled healthcare systems.

It would seem that the goal of the free-market reformer in the current climate must be to stop speaking of preventing “socialized medicine” but instead he or she ought to focus on carving out a role for the market in what is clearly a government dominated sector. The discussion is now one of “de-regulation,” “flexibility,” or “breathing room” for a truly free fee-for-service economy to develop. America now has an enormous “public” healthcare system. The goal now is to carve out some means of escape.

]]>The Two Paragraphs the So-Called Legal Experts are Keeping from Youhttps://tenthamendmentcenter.com/2018/11/19/the-two-paragraphs-the-so-called-legal-experts-are-keeping-from-you/ Mon, 19 Nov 2018 12:31:33 +0000http://tenthamendmentcenter.com/?p=28094The states, holding the initial repository of power and the architects of the whole system, are of course the ultimate voice.]]>

All the so-called respectables are up in arms about acting Attorney General Matthew Whitaker.

I wrote about this earlier this week.

But this one deserves a double dip.

Whitaker has made friendly remarks about nullification. This is not allowed, even though Thomas Jefferson said the states could nullify unconstitutional federal laws.

(No modern critic of the idea ever mentions Jefferson’s name. They’re afraid if we know Jefferson supported it, we peons might get ideas.)

CNN legal analyst Renato Mariotti offered these deep thoughts:

“‘Nullification’ was a legal argument made by Southerners before the Civil War who believed their states could ‘nullify’ federal law. That argument was discredited after their defeat in the Civil War, but it was made again by racists opposing desegregation. And now by Whitaker.”

I document the actual history of nullification in some detail in my book Nullification. Mariotti’s version reads like a third-grade essay, with a dash of Orwell.

On my podcast the other day I smashed Mariotti’s little lecture to smithereens.

In a later Tweet he berated Whitaker for his disparagement of judicial review.

Warned Mariotti: “The government could pass a law imprisoning journalists and no court could review it.”

Well, guess what: the government did pass a law like that, in 1798, and a lot of good the Court did. It was only at the state level that a spirit of resistance could be found.

Even if the Court had reviewed the law, what is the chance a bunch of robed Federalists were going to overturn the Alien and Sedition Acts?

And that, according to James Madison in the Report of 1800, is why we have state nullification: when the three branches of the federal government betray us — yes, even the demigods of the Supreme Court — the states have the final say.

I guarantee you did not come across this passage in school, at any level:

The resolution [the famous Virginia Resolutions of 1798] supposes that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution [“the parties to the Constitution” are the states], to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another; by the judiciary, as well as by the executive, or the legislature.

However true, therefore, it may be, that the judicial department, is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts.

What Madison means in the second paragraph above is that while the judicial branch may be considered the final authority on constitutionality between itself and the executive and legislative branches of the federal government, it is not the final authority between itself and the states. The states, holding the initial repository of power and the architects of the whole system, are of course the ultimate voice.

Folks like Mariotti think they’re the smart ones, and people who disagree with them are backward hicks.

]]>How Thinking Proves the Existence of Natural Rightshttps://tenthamendmentcenter.com/2018/11/17/how-thinking-proves-the-existence-of-natural-rights/ Sat, 17 Nov 2018 22:19:50 +0000http://tenthamendmentcenter.com/?p=28081At the center of pro-liberty philosophy and American constitutionalism is the concept of “natural rights,” meaning individuals are created with rights that are an innate part of our humanity or existence. Yet there are those who say we don’t have natural rights. We may have “rights,” they’ll argue, but they can be taken away or limited […]]]>

At the center of pro-liberty philosophy and American constitutionalism is the concept of “natural rights,” meaning individuals are created with rights that are an innate part of our humanity or existence.

Yet there are those who say we don’t have natural rights. We may have “rights,” they’ll argue, but they can be taken away or limited under abstract justifications such as “the greater good,” “the will of the people” or whatever certain institutions decree.

I hold that natural rights, in fact, do exist, and their existence is proven by the mere act of thinking.

For the purpose of clarity and consistency, I define a “right” as “a thing to which a person has a just claim.” A “natural right” is defined as “a thing to which a person has a just claim as an innate part of their existence.”

It is important to note that rights do not exist outside of human relations. Rights are a construct to determine what is and is not allowed within human relations and interactions, but they are not a physical thing. You have the right to life, but that does not prevent you from starving during a famine, dying from cancer, or getting mauled by a bear. Your right to live concerns what other people may or may not to do you, and vice versa. Also, having a just claim to something has nothing to do with your ability to defend that right against someone violating it. Just because a right is violated or no longer recognized by other humans does not mean it no longer exists.

With that in mind, my argument is as follows: That thinking proves the existence of natural rights because the act of thinking is something a person has a just claim to as an innate part of their existence.

For the sake of brevity, I’ll summarize the argument as follows: In order to think that natural rights do not exist, a person must exercise that very right. It is akin to someone saying “I do not exist,” a statement that is self-evidently contradictory.

First, let us examine the argument that natural rights do not exist. Logically, this means that you do not have a natural right to anything. By necessity, this includes the right to think.

If natural rights do not exist, then we do not have a natural right to think.

Now, someone may retort that we nevertheless still have a right to think. However, this evades the original premise that there are no natural rights. If natural rights do not exist, it must follow that you do not have the natural right to think.

This leads to an interesting question: What’s the difference, if any, between a natural right to think and the mere right to think? To put a finer point on it, attempting to separate “natural rights” from “rights” implies that one is absolute while the other is ultimately conditional. Further, natural rights are a part of the individual, whereas rights come from external sources outside the person.

So, in what way is a person’s right to think conditional, and where does it come from?

One may point out that while thinking requires that the person exists, the inverse is not true. A person’s existence precedes thinking and one can, scientifically speaking, live without the capacity to think. So, the argument might go that you have the right to think when you begin to think, and so the right to think is not a natural right.

But how is the “right to think” under this definition any different from a natural right? It is like saying you have the right to exist only when you begin to exist, and not a moment before. A person has their natural rights when they begin to exist, which is why no one has the ability to think before they have the right to think.

The distinction may appear subtle, but it is significant in the sense that the just claim to something is not contingent on one’s current ability or capacity to exercise it.

Yet even if a person’s right to something begins when they are capable of doing it, then it still must follow that it is a natural right, because the right to think does not come from an external source. They gain the right to think the same way they gain the ability to think, naturally.

Would anyone argue that it is “natural” for a person to be incapable of thinking or that it is unnatural for a person to think? No one looks at a brain-dead person incapable of thought and thinks to himself, “It is perfectly natural they are this way.” Nor does one wonder how someone gained the ability to think, because we know it is innate.

All other arguments against the natural right to think — that the right to think is not natural or conditional even when one was the capacity to think — raise even more problematic issues. If the right to think is not a natural right, then the right must come from somewhere else other than from within a person.

Where then does the right to think come from, and how do we know this?

This also means that one has to explain where they got the right to think that thinking itself is not a natural right.

The most significant, and damning, implication of this view is that it also holds that it is possible for a person to think even when they do not have the right to think. If your right to think is not natural, then it must originate from an external source. What source might this be? How does one determine this without going beyond one’s admittedly conditional right to think?

The greatest flaw in the argument that the right to think is not a natural right, is that it is a zero-sum game which requires circular reasoning; to say the right to think is conditional is to say that in some circumstances Person A’s right to think is limited even if their capacity to think is not. In other words, they don’t always have the right to their own thinking.

Who decides this and, more importantly, who now has the right to Person A’s thinking? No one? Everyone and anyone? No one can “think” for someone else.

But let us entertain a possibility. If Person B, or possibly others as well, has a just claim to Person A’s thinking, how do they have the ability to exercise that right?

The impossibility of such a notion is self-evident. Though a person’s thinking can certainly be influenced and manipulated by externalities, ultimately only they have the authority to determine how, when and what they think, and that authority cannot be usurped or even delegated in a literal sense. It is impossible to “lose” one’s right to think or to hand it over to another. Even if one were to lose their ability to think while still alive, that does not mean they lose their right to it.

Furthermore, no one can exercise the right to think for someone else in a literal sense.

If this was not the case, then one must concede that under certain circumstances it is legitimate for a person to respond to the rhetorical question “What were you thinking?” with, “Nothing, someone else was thinking for me, as I didn’t have the right to my own thoughts at the time!”

Yet if Person A’s right to think is limited, then so is Person B’s; how can one have the right to the other’s thoughts when they don’t even have an absolute right to their own?

But if one finally concedes that there is no difference between the right to think and the natural right to think, what implication is being made by saying natural rights do not exist?

If we have a right to think, and this right is not conditional and does not come from anyone, then it must follow that it is a natural right.

A person has total exclusivity over their thinking, which is a key foundation to the concept of property ownership. This is why they also have a right to the thoughts created by their thinking.

Let us entertain another possibility: That thinking is not a right, but a privilege. The problem with this argument is that all privileges require the existence of rights. It is a privilege for Person A to use something because it ultimately belongs to Person B, who has the right to take it back when they wish.

So how does one person have the right to another person’s thinking when their own thinking is a privilege? Who ultimately has a right to people’s thoughts?

Again, since thinking is not a natural right, or even a right under this argument, then the privilege to do so must come from somewhere.

Once more, we run into a logical dead end; even if thinking is a privilege, it is only a privilege in a limited sense; one man’s privilege is another man’s right. Thus, thinking is still a right, and we’re no closer than before in trying to determine where this right comes from.

One might conceivably argue that thinking is neither a right nor a privilege, yet this adds further problems. If thinking is not a right, then it logically follows that you do not have the right to think; this includes thinking that you have no right to think. And since thoughts are property created by the act of thinking, you do not have any right (just claim) to think that.

So to be consistent, if one believes that one does not have the right to think the thought that natural rights do not exist, then they are claiming that their thought is invalid because they have no just claim to it.

It is logically impossible for to think that you do not have the right to think, because by thinking this thought, you are exercising that very right you claim does not exist.

So having proven by deductive reasoning that A) we have a right to think and B) That this right is a natural part of our existence, we arrive at our logical and rational conclusion:

You think, therefore you have the natural right to think.

]]>Counterpoint: The Whitaker Appointment Is Unconstitutional under the Constitution’s Original Meaninghttps://tenthamendmentcenter.com/2018/11/16/counterpoint-the-whitaker-appointment-is-unconstitutional-under-the-constitutions-original-meaning/ Fri, 16 Nov 2018 12:29:35 +0000http://tenthamendmentcenter.com/?p=28092Since the Whitaker appointment is not a recess appointment, it is constitutional only if (a) he is an inferior officer or (b) the "appointment" is not really an appointment. ]]>

In the matter of the appointment of Matthew Whitaker as Acting Attorney General, my co-bloggers are divided: Andrew Hyman argues here that the appointment is constitutional under the Constitution’s original meaning, while Mike Rappaport argues here (relying on his earlier law review article) that it is not, because Mr. Whitaker does not hold a Senate-confirmed office. Also, yesterday the Department of Justice released a legal opinion (per Assistant Attorney General Steven Engel) in support of the constitutionality of the appointment, although (as I’ll discuss below) its analysis of the original meaning is very thin.

I mentioned some initial concerns about the appointment last week, and on further reflection I side with those who find that the Constitution’s original meaning does not allow the appointment. But Andrew Hyman raises some important arguments that need a response.

The basic textual argument against the appointment’s constitutionality is simple. The appointments clause, Article II, Section 2, states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other Public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not otherwise herein provided for.” This provision is subject to two textual exceptions: (1) Congress may “vest the Appointment of such Inferior Officers, as they think proper” in the President alone, the courts of law, or the heads of departments, and (2) the President may make appointments to vacancies that happen during the recess of the Senate. The most plausible reading (indeed, I would say the only plausible reading) of this text and structure is that it establishes a general rule of Senate advice and consent for appointments subject to only two exceptions, for recess appointments and for inferior officers.

Since the Whitaker appointment is not a recess appointment, it is constitutional only if (a) he is an inferior officer or (b) the “appointment” is not really an appointment. As to (b), that argument might work for persons who hold another federal office and merely have their duties expanded temporarily. But that is not the case for Mr. Whitaker, who does not concurrently hold another office. As to (a), the core definition of an inferior officer would seem obviously to be someone subject to a superior other than the President. Whitaker does not meet that definition. Again, it’s possible that a person already holding a inferior office could be delegated temporarily the duties of a superior office and yet remain an “inferior Officer” so long as that person still had a “superior” — but that is not Whitaker’s situation.

The Department of Justice opinion argues that an acting officer might be an inferior officer because of the short duration of the appointment. But I agree with Mike Rappaport: “It is not the length of time, but the duties that are performed that are relevant.” Specifically, it is whether the duties are performed with supervision by someone other than the President. The text does not suggest anything about duration (and in any event, an acting appointment could last fairly long).

I’m not aware of any pre-ratification discussion or other evidence that would undermine this view. There is some contrary post-ratification evidence but I find it insufficient given the clarity of the text. First, Congress by statute in 1792 gave the President power to make acting appointments without limitation. The Whitaker appointment would have been legal under that statute. But it does not appear that this statute produced any reflection or debate, and no one explained how it could be constitutional as applied to superior officers who lack Senate confirmation (plainly it is constitutional as applied to inferior officers and [as discussed below] superior officers with prior Senate confirmation). Second, under that statute and its successors, Presidents made some acting appointments that appear not to comply with the Constitution’s text.

According to the Engel opinion, the first of these appointments was by President Jefferson in 1809, designating John Smith to serve as Acting Secretary of War. (In a prior post, I suggested that the first such appointment might have been in 1829, but I mistakenly assumed that the office of Chief Clerk of the War Department, which Smith held, was a Senate-confirmed position; it was not). However, it does not appear that the practice of appointing non-confirmed persons to superior offices became at all common until the Jackson administration in 1829. Again, the single unexplained appointment in the Jefferson administration does not seem sufficient to overcome the clear text; the practice in the Jackson administration is not good evidence of original meaning, both because it is remote from the drafting and ratification of the Constitution and because President Jackson was not overly cautious about expanding executive powers.

The Department of Justice opinion does not claim that the historical practice indicates an original meaning in support of the appointment; rather, it principally relies on subsequent historical practice as creating the meaning in itself. It says only that calling someone with an acting appointment an inferior officer is a possible reading of the text. (It also relies on the 1898 Supreme Court case United States v. Eaton, but Eaton also does not have much originalist analysis).

Andrew Hyman makes three main arguments, not reflected in the Department of Justice opinion, in support of the Whitaker appointment: (1) that it is supported by early practice, specifically John Jay’s service as acting Secretary of Foreign Affairs; (2) that it is constitutional under the take care clause; and (3) that its constitutionality is implied by the recess appointments clause.

As to the first, he points out that John Jay served as acting Secretary of Foreign Affairs under Washington prior to the appointment of the first Secretary of State. There is some weight to this, but on the other hand it occurred during a time of transition and in the face of practical necessity. Foreign affairs needed continuing management and there were no other federal officers at the time; Jay was not so much appointed as carried over from the Articles of Confederation, under which he held the office. Jay himself said he was acting “not officially.”

On the second point, he argues that the President’s duty to take care that the laws are faithfully executed implies power in the President to take necessary actions to assure faithful execution, including making short-term acting appointments. He also points to the language in the appointments clause limiting the Senate role to approving officers “whose Appointments are not otherwise herein provided for” and argues that acting appointments are provided for (implicitly) in the take care clause. I think any such power would come from the executive vesting clause of Article II, Section 1, not the take care clause, which is only a duty to take care to the extent of the powers elsewhere provided. But that’s a quibble. The more important point is that the President’s executive power is qualified by the Constitution’s express assignments of executive power to other branches. Thus the President cannot declare war, even if war is needed to assure the laws are faithfully executed, because war power is expressly assigned elsewhere. Similarly, the President cannot make appointments (other than in accordance with the appointments clause) even if appointments are needed to assure the laws are faithfully executed. The “otherwise provided for” language does not help because, first, acting appointments are not “provided for” in the take care clause, and second the “otherwise provided for” language is more naturally read to refer to the inferiors officers clause and the recess appointments clause, which immediately follow and which provide for appointments without Senate consent.

The third point is the most interesting. It is true that the recess appointments clause allows the President alone to appoint any person, without limitation, as a superior officer without Senate approval. Thus if if the Attorney General vacancy had “happen[ed] during the recess of the Senate” the Whitaker appointment would be obviously constitutional. This substantially undercuts the argument of people such as George Conway and Neal Katyal that the Whitaker appointment somehow betrays fundamental constitutional principles. In fact, the appointment is only constitutionally problematic because it happened not to be a recess appointment. Yet, Andrew Hyman reasonably asks, why would the Constitution draw such a sharp line between a recess appointment and a temporary appointment? Both serve the same purpose of allowing the executive branch to function at full strength until the Senate’s consent can be obtained.

My answer illustrates an important point about the Constitution: it’s drafters were human, and thus fallible. I think it was likely a mistake. The drafters understood that when the Senate was in recess, there needed to be a way to fill vacancies. They thought that when the Senate was not in recess, filling vacancies would not be a problem, because if the vacancy created serious difficulties the Senate would act quickly. But they did not appreciate that vacancies or incapacities can arise suddenly, that the President may need time to identify and vet a suitable long-term candidate, and that the Senate may need time to deliberate. Vacancies that arise when the Senate is sitting may still be problematic. That doesn’t mean the Constitution has to provide for them.

The 1792 Act, and subsequent vacancy acts, are thus something of a work-around. They work to an extent, as Mike Rappaport explains. Congress can provide that the duties of a Senate-confirmed officer include assuming the duties of another office, on an acting basis, if the President directs. The acting “appointment” is not really an appointment, but a reallocation of duties. The person is acting as a superior officer in carrying out these duties, but that is constitutionally unobjectionable because that person has already been approved by the Senate. Although the framers may not have envisioned this work-around, the text does not prevent it. And placing the power over acting appointments with Congress allows Congress to limit them.

The Constitution’s text does, however, prevent the President from allocating “acting” duties of superior officers to persons who have not been approved by the Senate for any office. In assuming such duties, the person becomes a superior officer (that is, acts without supervision by anyone other than the President). And the text says that all superior officers, other than those appointed during a recess, must be approved by the Senate.

NOTE:This article was originally posted at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

]]>Mainstream Media Still Stupid on Nullificationhttps://tenthamendmentcenter.com/2018/11/14/mainstream-media-still-stupid-on-nullification/ Wed, 14 Nov 2018 10:57:29 +0000http://tenthamendmentcenter.com/?p=28079Well, it’s been a while since I’ve had the opportunity to take apart a mainstream news report on nullification. You probably won’t be surprised when I tell you that after all of these years, reporters are still stupid on the issue. In truth, we haven’t really seen a lot of discussion about historical nullification in […]]]>

Well, it’s been a while since I’ve had the opportunity to take apart a mainstream news report on nullification. You probably won’t be surprised when I tell you that after all of these years, reporters are still stupid on the issue.

In truth, we haven’t really seen a lot of discussion about historical nullification in the mainstream over the last couple of years. That’s mainly because states have nullified federal actions in effect by simply refusing to cooperate with the enforcement of federal laws and the implementation of federal programs. The anti-commandeering doctrine makes nullification through non-cooperation uncontroversial – at least in a legal sense. The strategy is SCOTUS-approved.

But CNN reporter Andrew Kaczynski brought historical nullification back into the spotlight by digging up statements acting Attorney General Matthew Whitaker made in support of the principle back in 2013. Whitaker was talking about state governments having the courage to nullify ObamaCare, noting that the states created the federal government, not the other way around.

“But do I believe in nullification? I think our founding fathers believed in nullification. There’s no doubt about that.”

Of course, he’s absolutely right. James Madison and Thomas Jefferson first formally articulated the principles of nullification in the Kentucky Resolutions and Virginia Resolutions of 1798. But the idea goes back to the ratification debates. During the Virginia ratifying convention, George Nicholas told the delegates that if the federal government ever exceeded its authority, Virginia would be “exonerated” from it.

“If thirteen individuals are about to make a contract, and one agrees to it, but at the same time declares that he understands its meaning, signification and intent, to be, what the words of the contract plainly and obviously denote; that it is not to be construed so as to impose any supplementary condition upon him, and that he is to be exonerated from it, whensoever any such imposition shall be attempted — I ask whether in this case, these conditions on which he assented to it, would not be binding on the other twelve? In like manner these conditions will be binding on Congress. They can exercise no power that is not expressly granted them”

But according to the obligatory “legal scholar” trotted out by CNN, nullification is “irreconcilable not only with the structure of the Constitution, but with its text, especially the text of the Supremacy Clause of Article VI—which not only makes federal law supreme, but expressly binds state courts to apply it.”

And there it is! The supremacy clause.

In any mainstream article about historical nullification, you can expect a “legal scholar” to make an appearance. And you can also expect said “legal scholar” to trot out a bastardized explanation of the supremacy clause. They always leave out the key words in the clause, ignoring the fact that only laws made “in pursuance” of the Constitution stand as supreme. All other federal actions are, as Alexander Hamilton put it, “void.”

Our intrepid CNN reporter also took issue with comments Whitaker made back in the day, calling federal courts “the inferior branch” of the government. Every good American knows this is absurd, right? Well apparently, Alexander Hamilton didn’t get the memo. He said pretty much the same thing in Federalist #78.

“Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

But didn’t Marbury v. Madison make the Supreme Court supreme in determining constitutionality? Well, that’s the conventional wisdom. And in effect, the legal world functions that way today. (Even though it’s a misreading of what John Marshall wrote in his opinion.) But doesn’t it seem a little weird that the Supreme Court got to declared itself supreme? I mean, if I declare myself emperor, does that make me emperor? Is it really so odd that somebody might question this notion?

Of course, anybody who brings up nullification is racccccccciiiiiiiissssssssttttt! And Kaczynski eventually gets around to making that inference. You find all the typical talking points. John C. Calhoun shows up. And of course, “The issue of nullification gained traction with states’ resistance to the federal government during the Civil Rights movement.” As usual, CNN completely ignores the most successful historical nullification effort – the decidedly non-racist nullification of federal fugitive slave laws in the years leading up to the Civil War.

Kaczynski also exercises a bit of journalistic malfeasance. It cites the Tenth Amendment Center. I’m still waiting for the reporter to contact me. That’s journalism 101. If you’re going to cite an organization – talk to somebody there. If the reporter had talked to me, he might have done better than to only mention “non-binding resolutions asserting their sovereignty under the Tenth Amendment” in 2010. I could have told him about all the laws states have passed pushing back against overreaching federal power on a wide range of issues over the last several years. I could have also explained how the nullification isn’t a “right wing” movement. Many of the most currently successful nullification actions involve traditionally left-wing issues, including immigration and marijuana.

We used to see mainstream articles like this all the time. I used to spend a lot of time refuting silly “legal scholars” and ignorant reporters. No, the truth is it doesn’t really matter. Legal scholars and reporters can say what they will. The fact is we are nullifying already and all of their hyperbole and histrionics won’t change that.

]]>Is the Attorney General Unconstitutional?https://tenthamendmentcenter.com/2018/11/12/is-the-attorney-general-unconstitutional/ Mon, 12 Nov 2018 20:22:38 +0000http://tenthamendmentcenter.com/?p=28064In the New York Times, Neal Katyal and George Conway argue that the President’s appointment of Matthew Whitaker as Acting Attorney General is unconstitutional: the problem, they say, is that Whitaker, who was Attorney General Sessions’ chief of staff, was never confirmed by the Senate; thus he’s not eligible to fill a position that requires Senate confirmation. […]]]>

In the New York Times, Neal Katyal and George Conway argue that the President’s appointment of Matthew Whitaker as Acting Attorney General is unconstitutional: the problem, they say, is that Whitaker, who was Attorney General Sessions’ chief of staff, was never confirmed by the Senate; thus he’s not eligible to fill a position that requires Senate confirmation.

At NBC News, Steve Vladeck argues persuasively that the appointment complies with the Federal Vacancies Reform Act, and adds:

There is also a constitutional objection [citing Katyal and Conway] to having someone who has not been confirmed by the Senate serve on even a temporary basis in such a senior position. But as Justice Antonin Scalia explained in 2014, “Congress can authorize ‘acting’ officers to perform the duties associated with a temporarily vacant office — and has done that, in one form or another, since 1792.” [quoting Scalia’s separate opinion in NLRB v. Noel Canning].

That’s right as far as it goes: Scalia cites the Act of May 8, 1792, Section 8, which provides:

And be it further enacted, That in case of the death, absence from the seat of government, or sickness of the Secretary of State, Secretary of the Treasury, or of the Secretary of the War department, or of any officer of either of the said departments whose appointment is not in the head thereof, whereby they cannot perform the duties of their said respective offices, it shall be lawful for the President of the United States, in case he shall think it necessary, to authorize any person or persons at his discretion to perform the duties of the said respective offices until a successor be appointed, or until such absence or inability by sickness shall cease.

But maybe the 1792 Act was unconstitutional. Katyal and Conway cite Justice Thomas’ opinion in NLRB v. Southwest General, where he argued that appointment of the acting General Counsel of the NLRB required Senate approval:

The officer in question was a principal officer, [Justice Thomas] concluded. And the public interest protected by the Appointments Clause was a critical one: The Constitution’s drafters, Justice Thomas argued, “recognized the serious risk for abuse and corruption posed by permitting one person to fill every office in the government.” Which is why, he pointed out, the framers provided for advice and consent of the Senate.

This was also an appointment under the Federal Vacancies Reform Act, so Justice Thomas was saying that the FVRA, as applied to principal officers, is unconstitutional.

Scalia’s opinion and Thomas’ opinion can be reconciled if one concludes that, as to principal officers, the acting appointment can only be given to a person who has already been confirmed to another office by the Senate. We could say that the Senate implicitly confirmed the person to an office whose duties included (a) whatever duties are assigned to that office; plus (b) acting temporarily in another office if the President chooses. Noel Canning didn’t involve the specific issue of whether un-confirmed persons could assume the duties of offices that ordinarily require confirmation, so Scalia may have been speaking loosely and not meant that the President could designate anyone as an acting officer (although that’s what the 1792 Act says). And Southwest General didn’t involve appointment of a person previously confirmed to a different office, so Thomas may not have been thinking about that possibility.

But that doesn’t help Whitaker, who wasn’t confirmed by the Senate for another office (at least not recently; Katyal and Conway concede he was confirmed for a different office, since relinquished, in 2004).

One more possibility: maybe an acting position isn’t an “office” and so designation of that person isn’t an “appointment” for constitutional purposes. Note that the 1792 Act doesn’t say the President can “appoint” an acting officer; it says the President may “authorize any person or persons at his discretion to perform the duties” of the vacant office. This is also true of the FVRA, which says the President “may direct” a person to perform duties of the office but doesn’t say “appoint.”

Maybe that’s coincidence, or maybe it’s Congress trying to draft around the appointments clause. In any event, I’m not sure it works, because it still leaves a un-confirmed person doing things that are supposed to be done by a confirmed person. Thomas didn’t consider this question in Southwest General but he necessarily assumed (without discussion) that designating an acting general counsel is an “appointment.”

So maybe the (acting) Attorney General indeed is unconstitutional.

(Thanks to Andrew Hyman for raising the issue, but he doesn’t necessarily endorse the analysis).

NOTE:This article was originally posted at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

]]>Is Liberty for You?https://tenthamendmentcenter.com/2018/11/11/is-liberty-for-you/ Sun, 11 Nov 2018 12:41:27 +0000http://tenthamendmentcenter.com/?p=28036If you are concerned about the Constitution then liberty is probably a core value for you.]]>

I’m often asked: Why should I hold liberty as a political value?

Why liberty? Is it really that important?

The answer to this questions is self-evident to some, while to others, it remains elusive and hard to understand. Let’s take a look at some reason’s why you should choose liberty whether you are lean politically to the left or to the right.

Should liberals choose Liberty? The answer is unequivocal yes! Liberals should favor liberty if they would rather have those found with drugs get help rather than be thrown in jail. Those who value liberty see jailing people simply for consuming a substance as a profound evil that needs to be stopped so that those who need help can get help. Drug legalization or decriminalization could hundreds of thousands to be released from jail to have a life again. This alone would allow users to get help rather than fear getting arrested and having their lives ruined. It would also keep the war on drugs from targeting minorities and would help with reducing violence in the inner city as well.

What about conservatives? Of course. If one of the things conservatives are concerned about is the debt crises, then liberty needs to be addressed. It is not conservative to fleece the public to pay for pet projects and massively bloated government bureaucracy. Those who hold liberty as a core political value see that this is theft on a massive scale. It is absolutely wrong to take more taxes than absolutely needed to fund the constitutional responsibilities of government.

Those who favor equality should favor liberty as well. With liberty each person, according to their own conscience, can do what they please so long as they do not harm another person. This means that if two women would like to get married then they can. We should get government out of marriage rather than have it interfering in personal relationships.

If you are concerned about the Constitution then liberty is probably a core value for you. You see it as a bulwark against an encroachment on your rights. It places clear limits on government power and gives us a way to fight back when politicians overreach their authority.

Should liberty be held as a principle for those against war? Yes! War, especially aggressive war, is antithetical to those who value liberty. War is bringing forth those who want power. It destroys civil liberties at home while being despotic abroad. It leads to the death of friends and family members while also destroying the rights of those who are left. War brings about a frenzy that tends to silence those who are against it while labeling them traitorous. This is a dangerous combination for those who value civil liberties and free speech.

Liberty in defense of a nation? Yes! Liberty is a bulwark of defense. It allows people to be who they want to be with no repression under the law. It provides the means for people to defend themselves as well as others. This bulwark has served us well and will continue to do so.

What is liberty without economic freedom? The short answer is not much. Without economic liberty, we can’t truly be free. If we are not free to choose, we are not free at all. We should have the liberty to purchase the birth control of our choice or the weapon of our choice. We know that big corporations purchase Congress, yet we have massive amounts of regulation and fees, and barriers to entry to prevent the little guy from competing. A look at history demonstrates that those who have lobbied for regulation of their own industries did so because regulations thwart upcoming competition who can’t afford the cost. Such regulations prevent ordinary people from starting their own businesses. Why? Because those who are already in business are creating barriers to entry. Simply ask why you need a license or a degree to cut hair or a license to put flowers in a vase and this becomes obvious. Believing in liberty is believing that everybody should have the opportunity to start and operate their own business if they see fit.

Along with economic liberty, comes the ability to give more. If you are concerned about the poor and the downtrodden then you need liberty. It allows for you to have more wealth, which in turn allows you to be more charitable. If you have more wealth than you are enabled to support the charities of your preference, or give more of your time to them by volunteering. This allows you to act on your morals rather than having your money go to things you may not agree with such as wars or wasteful government programs. With liberty, you can take an active role in your community as you pursue prosperity.

Is liberty for you?

If you believe in peace, tolerance, equality, civil liberties, the Constitution, individualism, and the ability to purchase what you want for yourself, then Liberty is for you. If you value seeing your children grow up to be whomever they choose to be then liberty is for you. Liberty is not a mere ideology, it is a principle, that when held as a core belief allows you to become the person you want to be. It doesn’t ask you to conform, but to simply allow others to act for themselves without coercion.

Americans headed to the polls to cast ballots in the midterm elections. Democrats regained control of the House of Representatives, but Republicans held onto the Senate.

There is a lot of speculation about what this will mean, but there are many policies that won’t change regardless of who holds Congressional power.

For starters, we can count on the continuation of huge deficits. The Treasury Department’s most recent estimate is that government borrowing will double in 2018 versus last year. The bureaucracy is going to blow through $1.34 trillion more than this year’s record tax revenue.

That deficit will be the highest since 2010, back when the U.S. economy was mired in a deep recession. Today, the IRS stands in high cotton. Imagine what deficit would look like if tax receipts were at recessionary levels and/or Congress was launching a major stimulus program.

The conventional wisdom is the best-case scenario for deficit hawks was a Republican victory. although an argument could be made that a splitting of power between the two chambers would result in somewhat of a stalemate in Washington, possibly meaning slower expansion of governmental programs. Unfortunately, the “best case” is not all that good. Big government Republicans are already in control of Congress, and even the president’s supporters admit Donald Trump is not conservative when it comes to borrowing and spending.

The deficit is already exploding in size under “best case” conditions. That is why forecasters have been calling for trillion-dollar deficits as far as the eye can see.

Almost nobody in Washington DC cares about sound money, and that won’t change despite the election results.

Democrat and Republican leadership both adore the Federal Reserve for enabling them to perpetually spend way beyond their means. Candidates instinctively know better than to seriously rock the boat. That includes Republicans, who are more concerned with reassuring voters they will protect entitlements and key programs like military spending.

As things stand, the Tea Party movement to restrain spending is all but dead.

Most citizens seem to have forgotten the Fed’s unpopular decision to bailout crooked banksters and stick Main Street with the losses in 2008. Most never understood the central bank’s role in creating that, and other, economic crises in the first place.

Instead, Fed officials managed to once again claim credit for saving the U.S. economy by blowing yet another bubble. In the process, the central bank expanded its powers dramatically.

Some of the “extraordinary measures” launched by the Fed in recent years were promoted publicly. Others have been run completely in the dark. None encountered meaningful opposition.

Given the nearly full support of politicians and citizens alike, what can we expect but lots more plunge protection, QE, and whatever else the central planners deem necessary?

Pressure is already building on the Fed to be ridiculously accommodative again. Rising interest rates have pushed the dollar higher in foreign exchange markets and now the stock markets are beginning to flounder.

Meanwhile, President Trump wants the central bank to pause rate hikes and promote inflation. If necessary, he can install new leadership at the Fed to make sure that happens.

That isn’t the president’s only option though. Jim Rickards recently made an astute observation. If the central bankers won’t play ball, Trump’s Treasury secretary Steve Mnuchin certainly will. There is plenty he can do to weaken the dollar.

The return to sound money and limited government requires a 180-degree shift in ideology in Washington and an informed electorate. Sorry to say, that isn’t going to happen no matter how any election turns out.

As I pick through the rubble on another post-election Wednesday, I can’t quite figure out who the real winners and losers were in D.C.

The Democrats took the U.S. House, but the Republicans managed to strengthen their hold on to the Senate. The Blue Wave was more like a Blue Ripple. I’ve heard some pundits call the election a repudiation of Trumpism. Others say the results vindicated the president’s policies. Basically, the political landscape came out of the latest “most important election of our lifetime” a little muddled.

But here’s something crystal clear.

The nullification movement won and it won big. And this underscores the power of issue-based activism at the state and local level.

Three more states thumbed their noses at unconstitutional federal marijuana prohibition. Michigan voters approved a referendum legalizing recreational cannabis in the state, along with industrial hemp. Missouri and Utah voters legalized medical marijuana. Think about that for just a second — voters in Utah, arguably the most socially conservative state in the U.S., legalized medical marijuana despite federal prohibition.

There was also a big win for privacy in New Hampshire. Voters there approved a constitutional amendment strengthening individual privacy protections and setting the stage to undermine the federal surveillance state.

In Oregon, eight counties become “gun sanctuaries.” These voter-approved ordinances set the stage to end enforcement of both state and federal gun control.

And also in Oregon, voters said no to a measure that would have overturned the state’s 31-year-old immigration “sanctuary state” law.

Think about that. In the same state, voters said yes to effectively nullifying both federal immigration law and federal gun laws.

This underscores the power of issue-based activism. By focusing on issues instead of politicians, the nullification movement picked up solid wins. Why? Because people across the aisle can often agree on single issues. People on both the left and the right agree that the war on a plant has gone on long enough. People on both the left and the right value privacy. We even saw success with issues that more neatly fit into the left-right paradigm, such and guns and immigration, because activists could focus on specifics instead of trying to sell people on an individual’s position on a wide range of issues. It’s easier to get a majority to coalesce around an issue or principle than it is a personality.

By focusing on issues instead of personalities, we can build coalitions with various groups and organizations. We may agree on very little outside of the focus issue, but that doesn’t really matter. By joining forces, we can win victories.

Sadly, liberty doesn’t seem to sell as a broad political principle. Politics have evolved toward unadulterated pragmatism. But liberty does sell when it comes to individual issues. People still want their privacy. They still want to choose the plants they grow and ingest. They still want to own the firearms they chose to defend themselves and their families. They still want food freedom. They still want healthcare freedom. While the average person might reject the broad “liberty message,” they will embrace taking action on given issues they care about.

Therein lies the power of issue-based activism.

People tend to focus all of the attention on politicians and party races. But as Dave Benner put it, politics isn’t all about putting politicians in office. He was talking about third parties, but his comments apply equally to issue-oriented campaigns.

“Certainly, those calling themselves Whigs and Sons of Liberty did not view things in such a way when they obstructed the Stamp Act, Tea Act, and Admiralty Courts, those calling themselves Jeffersonian Republicans did not deem this so when they nullified and resisted the Sedition Act. Those involved in blocking the callous 1850 Fugitive Slave Act dared not to act with full deference to the party in power, nor did Rosa Parks when she refused to abide by legal segregation laws. Far from waiting for the next election to produce a legislature willing to repeal Prohibition, those who sought to do so acted without regard to the law, and the apparatus of state-imposed prohibition crumbled at its very foundation. Instead of relying on desired electoral outcomes, overt tyranny was rolled back because the arguments were won with the populace at large.”

In other words, the great political changes in American history didn’t primarily come about because somebody got elected to office. They occurred when large segments of the population coalesced around specific issues and forced change at the grassroots level.

That’s the strategy we take here at the Tenth Amendment Center. And it’s proved effective. Just look at the election results Tuesday night. Nullification won big. Now it’s time to keep pushing forward.

]]>This Supreme Court term will show that there is no 5-4 “conservative majority”https://tenthamendmentcenter.com/2018/11/06/this-supreme-court-term-will-show-that-there-is-no-5-4-conservative-majority/ Tue, 06 Nov 2018 14:03:14 +0000http://tenthamendmentcenter.com/?p=28037Some of the Supreme Court’s decisions this term will show why the media’s division of the justices into “liberals” and “conservatives” is deceptive. If one wants to divide the justices two ways, it would be more accurate to distinguish them as traditional judges or liberal activists. Five justices decide cases more or less in the […]]]>

Some of the Supreme Court’s decisions this term will show why the media’s division of the justices into “liberals” and “conservatives” is deceptive.

If one wants to divide the justices two ways, it would be more accurate to distinguish them as traditional judges or liberal activists. Five justices decide cases more or less in the Anglo American tradition of judging. Their results are sometimes “conservative” and sometimes “liberal.” The other four justices reach liberal results more uniformly, even when that requires breaking the normal rules of judging. At one time there were Supreme Court justices whom you could classify as conservative activists, but this has not been true for many decades.

Even restated as “liberals vs. traditionalists,” the two-fold division is not really accurate. The liberals usually vote together, but not always: Sonia Sotomayor split with Ruth Bader Ginsburg this month in voting to keep the Supreme Court out of an election ID case. Elena Kagan and Stephen Breyer have shown themselves willing to join decisions the media calls “conservative” when the grounds are sufficiently narrow.

More importantly, the five traditionalists are deeply split among themselves. The divide is largely about how much weight to give to case precedent vs. the Constitution’s original understanding vs. judicial deference to democratic legislatures.

One of the cases that may highlight the inaccuracy of the “liberal/conservative” canard is Gamble v. United States. The Fifth Amendment states “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” This is the Double Jeopardy Clause, which (with some exceptions) prohibits prosecution of a person previously prosecuted for the same offense. The courts have read into the Clause a “separate sovereigns exception.” What this means is that a federal prosecution does not insulate a defendant from a future state prosecution, and vice versa — because federal and state governments are separate sovereigns.

The separate sovereigns exception is firmly embedded in precedent: It has been part of American constitutional law for roughly 150 years. But it may well conflict with the original Constitution’s meaning of “twice put in jeopardy.” Liberals have loudly invoked precedent when defending the 45 year old abortion decision, Roe v. Wade. So you might expect liberal groups to argue for retaining the 150 year old separate sovereigns exception.

But that would be to overlook political hypocrisy. Liberals had no trouble urging the court to overturn millennia of precedents against same-sex marriage. In the Gamble case, a collection of mostly liberal organizations have filed advisory briefs arguing for reversal of precedent and a return to the Constitution’s original meaning. They even cite old English cases in the same way as we stodgy originalists do.

Media stereotypes would encourage us to expect a 5-4 decision upholding the separate sovereigns exception. On the winning side would be the “conservatives” of John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. After all, conservatives are pro-law enforcement, right? In dissent would be the four liberals of Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor — because, according to this theme, liberals are pro-defendant.

But that kind of split is unlikely in the Gamble case. The more traditional justices differ significantly in their legal methods and often reach liberal results. For example, Chief Justice Roberts believes in deference to the legislature, which led him to vote to uphold the Affordable Care Act’s individual health insurance mandate — a liberal result. Justice Thomas is committed to originalism, which led him to vote to uphold the prerogative of states to legalize medical marijuana — another liberal result.

Indeed, Thomas is still the Supreme Court’s sole consistent originalist: In a recent case, only he disputed the dubious claim, asserted by both the majority and the dissent, that Congress could use the Commerce Power to regulate all gambling nationwide.

Thus, the Double Jeopardy case could well be decided in a way that defies the opinion molders. Perhaps we’ll see Ginsburg, Sotomayor and Thomas on one side with Roberts and Kavanaugh on the other, with the remaining justices wielding the balance of power.

The point here is that asserting that a majority of justices are “conservative” is positively misleading. As this Supreme Court term will demonstrate.

]]>10 Myths About the U.S. Constitution Most Congressmen Believehttps://tenthamendmentcenter.com/2018/11/04/10-myths-about-the-u-s-constitution-most-congressmen-believe/ Sun, 04 Nov 2018 12:46:22 +0000http://tenthamendmentcenter.com/?p=28033There is no question that Americans are ignorant of the Constitution. But there are members of one elite group of Americans that I want to single out who are some of the worst offenders.]]>

A recent article on MSN is headlined: “10 Myths About the U.S. Constitution Most Americans Believe.” Here are the ten myths:

The Constitution is on hemp paper.

The Constitution has 39 signatures.

Thomas Jefferson and John Adams signed the Constitution.

The same signatures are on both the Declaration of Independence and the Constitution.

The Constitution established an American democracy.

All 13 states participated in writing the Constitution.

The President can veto a proposed amendment to the Constitution.

The Constitution gives the Supreme Court the power to declare laws unconstitutional.

The Constitution explicitly states there is a separation of Church and State.

The Constitution ensures your right to vote.

Each of these myths is adequately corrected by the author in the article.

There is no question that Americans are ignorant of the Constitution. But there are members of one elite group of Americans that I want to single out who are some of the worst offenders.

The ignorance that Americans have of the Constitution is exceeded by the ignorance of the Constitution that most congressmen have. Members of Congress swear to uphold the Constitution. Article VI, clause 3, of the Constitution requires that senators and representatives “be bound by oath or affirmation, to support this Constitution.” U.S. law requires that members of Congress be sworn in before they can take their seats. The language of the congressional oath has changed (it is set by statute) several times since it was first administered in 1789. It now reads:

I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

Regardless of any flaws or problems that the Constitution has, it is the supreme law of the land. One would think that members of Congress—most of whom have at least a bachelor’s degree and many of whom are lawyers—would have a good grasp of what the Constitution says. Yet, their constitutional ignorance is appalling.

Here are 10 myths about the U.S. Constitution that most congressmen believe.

The Constitution authorizes the federal government to have a DEA, destroy marijuana plants, and wage war on drugs.

The Constitution authorizes the federal government to have a retirement and disability program.

The Constitution authorizes the federal government to take money from Americans and give it to foreigners, foreign governments, and NGOs in the form of foreign aid or disaster relief.

The Constitution authorizes the federal government to have a Department of Education, issue student loans and grants, make bilingual-education mandates, accredit schools, have school breakfast and lunch programs, have math and science initiatives, and give states money to help operate their public schools.

The Constitution authorizes the federal government to have welfare programs like food stamps, Temporary Assistance to Needy Families (TANF), the Low Income Home Energy Assistance Program (LIHEAP), and Women, Infants, and Children (WIC).

The Constitution authorizes the federal government to issue gun regulations, license gun dealers, have a National Instant Criminal Background Check System and a Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), and make gun-control laws.

The Constitution authorizes the federal government to have a Department of Labor, job training programs, minimum-wage laws, overtime pay requirements, an Equal Employment Opportunity Commission (EEOC), and a National Labor Relations Board.

The Constitution authorizes the federal government to have a Department of Housing and Urban Development and a Federal Housing Administration, issue Section 8 housing vouchers, and insure mortgages.

The Constitution authorizes the federal government to have a Department of Agriculture, give away cheese, subsidize farmers, and issue dietary guidelines.

The Constitution authorizes the federal government to pay for the health care of some Americans, issue grants for medical research, have federal laboratories, have HIV/AIDS-prevention initiatives, regulate medical schools, regulate organ donations, issue medical-records mandates, and have a Department of Health and Human Services.

Americans are certainly ignorant of the Constitution. But members of Congress, who should know better, are just as ignorant. America could be “made great again” if the members of Congress simply followed the Constitution when it came to spending the taxpayers’ money.

]]>Learning the Constitution: An Introductionhttps://tenthamendmentcenter.com/2018/11/03/learning-the-constitution-an-introduction/ Sat, 03 Nov 2018 11:31:45 +0000http://tenthamendmentcenter.com/?p=28029Most people turn to lawyers or law professors to help them understand the Constitution. The problem with this approach lies in the fact that most lawyers and law professors are J.D. impaired. So where do we turn? How can we figure out what the various clauses and provisions in the Constitution really mean? The sad […]]]>

Most people turn to lawyers or law professors to help them understand the Constitution. The problem with this approach lies in the fact that most lawyers and law professors are J.D. impaired.

So where do we turn? How can we figure out what the various clauses and provisions in the Constitution really mean?

The sad fact is the vast majority of lawyers don’t actually know squat about the Constitution. They don’t learn about the Constitution in law school. Instead, they learn “constitutional law.” In other words, they learn what other politically connected lawyers — federal employees staffing federal courts — have said about the Constitution. They learn precedent and they follow it like a sacred text.

But as James Wilson wrote in “Of the Study of Law in the United States, Circa, 1790, “The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it.”

A lot of people think this means looking at what the drafters of the Constitution said during the Philadelphia Convention. And while we can get some hints about original meaning from those notes, the drafters don’t hold the key. We also need to look at what the supporters of the Constitution said it meant during the ratification debates. That’s where we find its actual meaning – in the original understanding the ratifiers actually agreed to. As Thomas Jefferson wrote:

“On every question of construction let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.”

But how do we determine the meaning in which it was passed? Or as one reader asked, “For those of us not JD-impaired, where should we go to get a sense of what was said during the debates? Weren’t those supposed to be a ‘what happens in Vegas’ sort of environment? I am recalling Hamilton’s leaked affinity for British monarchy that torpedoed him on some future occasions…”

It appears the reader was confusing the state-ratification debates with the Philadelphia Convention. The delegates drafting the Constitution did keep things locked down pretty tight. There was no information available to the public until the delegates emerged with the final draft. We still know very little about the “behind closed door debates” surrounding the drafting of the Constitution. Most of what we do know comes from James Madison’s copious notes.

On the other hand, the state-ratification debates were very public affairs and we can find extensive records about their proceedings.

The Federalist Papers are the best-known source of pro-constitution arguments. Three New York newspapers — the Independent Journal, the New York Packet, and The Daily Advertiser — published the first 77 essays between October 1787 and April 1788. In the spring of 1788, J. & A. McClean published all 77 essays, plus eight others, in a two-volume compilation titled The Federalist: A Collection of Essays, Written in Favour of the New Constitution, as Agreed upon by the Federal Convention, September 17, 1787.

The Federalist Papers are well-known primarily because of the prominence of their authors — Alexander Hamilton, James Madison and John Jay. Most people today overstate the importance of the Federalist essays. In fact, they had very little influence outside New York at the time. Nevertheless, we can find valuable insights into the way various provisions of the Constitution were “sold” to the general public from the essays.

But a wealth of information exists beyond the Federalist Papers.

Written records of testimony from most of the ratifying conventions survive to this day. Many of these records are available online. Reading the debates provides you with the most complete picture of the issues surrounding ratification. You find both the anti-federalist objections to ratification, as well as how supporters of the Constitution addressed those objections. Through analyzing these exchanges, we can parse out the original meaning as understood by those who voted to approve the document. The arguments offered by those who supported ratification provide the basis upon which the Constitution was accepted. These were the arguments that changed the minds of fence-sitters. These were the promises accepted by all of the ratifiers who voted yes.

Wilson’s speech was particularly important because it asserted that there were strict limits on the general government. Wilson argued that the new government would only be able to exercise delegated powers.

When the people established the powers of legislation under their separate governments, they invested their representatives with every right and authority which they did not in explicit terms reserve; and therefore upon every question, respecting the jurisdiction of the house of assembly, if the frame of government is silent, the jurisdiction is efficient and complete. But in delegating foederal powers, another criterion was necessarily introduced, and the congressional authority is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of union. Hence it is evident, that in the former case every thing which is not reserved is given, but in the latter the reverse of the proposition prevails, and every thing which is not given, is reserved.”

This idea was repeated over and over again during the ratification debates and provides one example of how ratification era texts illuminate the original understanding of the Constitution.

Dictionaries of the day can also help us to understand the meaning of various words and phrases in the document. The meaning of words change over time, so it’s important to understand what words meant when they were written. For instance, commerce had a very specific meaning in the 18th century and did not imply “all economic activity” as it does today. As James Madison wrote in a letter to Henry Lee:

“I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense!”

The important thing to remember is that it was the people of the states, through their elected delegates to the ratifying conventions, who gave the Constitution force. The ratifiers made their decisions to approve the Constitution based on the arguments and explanations supporters of the document presented during the ratification process.

It is in these pro-Constitution arguments that we find the original meaning. Even if the ratifiers viewed something totally different than what we might infer from the drafting debates at the Philadelphia Convention – the ratifiers’ views always hold.

You don’t have to read court cases or depend on lawyers to understand the Constitution. In fact, you shouldn’t. You can learn what the ratifiers thought for yourself.

]]>Pro-Gun Groups and Federal Gun Controlhttps://tenthamendmentcenter.com/2018/11/01/pro-gun-groups-and-federal-gun-control/ Fri, 02 Nov 2018 01:14:01 +0000http://tenthamendmentcenter.com/?p=28021Now that a Republican is in the White House and calling for federal gun control, it’s interesting to note where various gun groups stand now compared to the Obama years when similar unconstitutional measures were proposed. President Trump has announced plans to ban bump stocks, devices used to make semi-automatic rifles capable of firing nearly […]]]>

Now that a Republican is in the White House and calling for federal gun control, it’s interesting to note where various gun groups stand now compared to the Obama years when similar unconstitutional measures were proposed.

President Trump has announced plans to ban bump stocks, devices used to make semi-automatic rifles capable of firing nearly as rapidly as an automatic. The opposition coalition includes the Gun Owners Foundation, the Gun Owners of America, the Firearms Policy Coalition, and Firearms Policy Foundation. Several of these groups have filed petitions arguing in favor of keeping bump stocks legal, while a joint filing made in June offering a devastating critique of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF)’s proposal.

Today’s lengthy filing by the two Second Amendment groups, the Firearms Policy Coalition and Firearms Policy Foundation, is likely to prove embarrassing to the ATF. It lays out a convincing argument that the agency had investigated bump-fire stocks in great detail, and, in sworn testimony and pleadings in federal district court, concluded that they were perfectly legal under federal law.

According to the Daily Caller, Gun Owners of America Chairman Tim Macy offered an excellent response to the notion of a federal bump stock ban. “These regulations will infringe the Second Amendment rights of Americans — the very same Americans who elected the current President based on his promises that he would defend those rights. Respectfully, we want to emphasize there is no legal authority to ban so-called ‘bump stocks’ or ‘bump-fire stocks’ by decree.”

According to Reuters, ATF received over 17,000 public comments regarding its proposal, but of the 4,200 reviewed by the news agency, only 10 favored the bump stock ban. “Almost all the rest criticized the proposal as heavy-handed, unnecessary or unconstitutional.”

However, one prominent gun-rights group was conspicuously absent from the opposition — the National Rifle Association. According to Fox News, the NRA said it believes “devices designed to allow semi-automatic rifles to function like fully-automatic rifles should be subject to additional regulations.”

“In Las Vegas, reports indicate that certain devices were used to modify the firearms involved,” the NRA said. “Despite the fact that the Obama administration approved the sale of bump fire stocks on at least two occasions, the National Rifle Association is calling on the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) to immediately review whether these devices comply with federal law.”

Interestingly, only three years ago the NRA stood alongside other pro-gun groups such as the GOA and the Firearms Policy Coalition in opposing an Obama era effort to ban M855 ammunition, a common cartridge for the AR-15. The proposal was widely regarded as an indirect way of banning the AR-15 by depriving gun owners of ammo.

In a 2016 statement, the NRA opposed renewed efforts to ban the cartridge. Ironically enough, the association concluded their statement with this: We’ve said it before, gun control advocates are counting on American voters to have short memories this November. If you don’t want more of the same, choose wisely and vote freedom first.”

What adds insult to injury on a proposed bump stock ban is that Trump isn’t even going through Congress to essentially enact a law, as constitutionally required. An unconstitutional measure is being enacted by unconstitutional means.

Those who might be inclined to defend Trump on this should note that his actions only give credence to the belief that it doesn’t matter who is in the White House when it comes to gun rights. Is this any different from what Hillary Clinton might have done?

While gun groups that have consistently stood firm against federal gun control should be applauded, the fact is the NRA is the most popular and largest in terms of spending and membership, with a strong lobbying presence in D.C. Moreover, it is often used as the “bogeyman” for gun grabbers and the de facto voice of America’s gun owners. Despite its reputation, the NRA has repeatedly supported illegal gun control measures since the 1930s.

American gun owners should not rely solely on any advocacy group to protect their rights. The best approach is to have state, regional and local governments refuse to cooperate with the feds on these policies or provide them with any resources.

The federal government seems to keep passing whatever laws it wants, but without state assistance and cooperation, it will have a herculean task enforcing them. We should push for this form of nullification regardless of what any pro-gun group says about it.

It is the recommendation of founding fathers such as James Madison, and it’s an approach that has worked against other unconstitutional federal laws such as marijuana prohibition.

]]>Birthright Citizenship and Constitutional Interpretationhttps://tenthamendmentcenter.com/2018/10/30/birthright-citizenship-and-constitutional-interpretation/ Tue, 30 Oct 2018 21:33:55 +0000http://tenthamendmentcenter.com/?p=28023The issue is more complicated than is being portrayed.]]>

Various media outlets are reporting that President Trump is considering an executive order modifying rules on birthright citizenship. They are also typically reporting or heavily implying that this order would violate the Constitution. I think the issue is more complicated than it’s being portrayed.

There are two separate issues, (a) whether the Constitution allows the U.S. to deny birthright citizenship to the U.S.-born children of illegal immigrants, and (b) if so, whether the President can do it on his own, without an act of Congress. I’ll leave the second question to one side, as I think it’s mainly a question of administrative law.

I assume the President’s order would amount to a reinterpretation of existing statutory citizenship law; it seems clear that the President does not have independent power to vary the citizenship laws, but arguably he has power to change the administrative interpretation of them. (As an aside, though, my guess is that if the issue ends up in court, the most likely outcome would be for the courts to find that the President lacks power to change the rules on his own and thus avoid reaching the constitutional question).

On the constitutional question, as I have written several times in the past (e.g., here, with links to earlier posts), I think the original meaning of the Fourteenth Amendment is clear in granting birthright citizenship to U.S.-born children of illegal immigrants. Briefly:

The Amendment says that “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States…” It was a bedrock principle of nineteenth-century international law that sovereigns had complete jurisdiction (that is, authority to prescribe law) over all persons and things within their sovereign territory.

This principle was subject to several exceptions, notably (1) territorial jurisdiction did not extend to ambassadors and other diplomatic personnel, nor to foreign rulers and their property, all of whom had immunity from the laws of the territorial sovereign; (2) territorial jurisdiction could be limited by treaty, as the U.S. did to some extent in treaties with Indian tribes; and (3) territorial jurisdiction did not exist as a practical matter over hostile armies and in areas under hostile occupation.

These principles are described in Chief Justice Marshall’s opinion in The Schooner Exchange (1812) and in widely read international law treatises of the time.

U.S.-born children of illegal immigrants do not fit into any of the exceptions to territorial jurisdiction. Nor is there any doubt that such children are governed by U.S. law at the moment of their birth. Thus they are “subject to the jurisdiction” of the United States at birth. As a result, the text’s original meaning grants them U.S. citizenship at birth.

For originalists, that should be an end of the matter. (There are some counterarguments [discussed here] principally based on comments made in Congress during the drafting process. But on the whole the drafting debates support the above reading, as Garrett Epps has shown, and in any event the debates contain a range of views, some poorly expressed or poorly thought out; they should not overcome the text’s clear meaning.)

But that is not the end of the matter. Modern constitutional interpretation does not fully embrace originalism. The birthright citizenship issue is much more difficult from an evolving constitution approach (see my post here, and especially this post by Mike Rappaport). The drafters and ratifiers of the Fourteenth Amendment did not understand the issue of widespread illegal immigration. The country did not have restrictive immigration laws at the time. Thus the drafters and ratifiers likely did not see themselves as deciding the issue. It’s possible that, had the issue been before them, they would have made a different choice. And in any event, modern circumstances are much different. Most evolving constitution approaches typically would allow courts to consider the best fit for modern conditions in deciding an issue under these circumstances. And depending on one’s view of the policy arguments, it’s quite possible to reach the conclusion that the nineteenth century rule, adopted by people long dead to resolve a different challenge (principally the citizenship of former slaves), should not be used to constrain the choices of the elected branches to deal with a modern problem the framers did not anticipate.

I think this is a substantial difficulty for evolving constitutionalists, which is why I expect that most of the arguments against the President’s proposal will be couched in originalist terms (even by commentators who are typically not originalists).

The issue also poses an interesting dilemma for advocates of judicial restraint, including recent guest blogger Eric Segall. Professor Segall says in his recent post that (a) courts should not intervene against the political branches except where the originalist arguments are overwhelmingly clear, and (b) in litigated cases the originalist arguments are virtually never overwhelmingly clear. (Specifically, he writes: “Judges should not strike down laws unless the plaintiff shows through clear and convincing evidence that the law violates either clear text (almost never happens) or uncontested history behind the text.”) My question to him: is this a case (assuming it gets to court) where the originalist arguments are sufficiently clear? And, as a follow up: if the answer to that question is yes, are the changed modern circumstances sufficient to permit a reinterpretation, or at least to make the outcome sufficiently unclear that the courts should decline to intervene?

NOTE:This article was originally posted at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

]]>Deficits Do Matter: Debt Payments Will Consume Trillions of Dollars in Coming Yearshttps://tenthamendmentcenter.com/2018/10/29/deficits-do-matter-debt-payments-will-consume-trillions-of-dollars-in-coming-years/ Mon, 29 Oct 2018 17:46:53 +0000http://tenthamendmentcenter.com/?p=28020Exactly how that will affect ordinary households in terms of price inflation is impossible to guess for now.]]>

Interest on the national debt is quickly becoming one of the largest expenses in the national budget. Based on projections from the OMB, it now appears that growth in interest payments on the national debt will be significantly outpacing any other spending category in coming years.

The OMB’s projections show debt-payment outlays growing a startling 70 percent from 2017 to 2020. The sector with the next-highest growth rate is Defense, but that grows by only 20 percent over the same period:

While Medicare, defense, and Social Security all, for now, still use up much larger portions of federal spending, it won’t be long before payments on the debt will eat up hundreds of billions of dollars every year on a par with programs like Medicare and National Defense.

Over just a few years, that will be trillions of dollars that current taxpayers will have to pay to cover the profligate spending of the past that was done with assurances from politicians, economists, and complacent voters that deficits don’t matter.

The New York Times reported on the growing role of interest payments last month when it examined estimates from the Congressional Budget Office showing that interest payments will take up 13 percent of the budget in a decade. For a sense of how large a chunk of the budget that will be, we can note that both Medicare and defense spending (not including veterans’ benefits) each required 15 percent of all federal outlays.In that year, interest payments required less than seven percent of the budget, but that is increasing fast.

Ten years from now, that slice of the pie now labeled “interest” is likely to be the same size as the Medicare and Defense slices.

And it won’t be a surprise as interest rates increase and debt payments get larger. Indeed, the CBO expects the interest rate on the 10-Year Treasury note to increase 4.2 percent in 2020. It moderates after that, but never returns to the sorts of very-low rates we’ve seen in recent years.

The result is a sizable increase in total outlays necessary for debt service. While ultra-low interest rates have helped debt payments fall from the high levels seen in the 1980s and 1990s, rising rates will push them up to record levels.

Should a recession strike, we are likely to see a large drop off in revenues, just as we have seen in the last two recessions. In the 2008-2009 recession, of course, federal revenues fell 3 percent in 2008 and an additional 13 percent in 2009. This caused the annual deficit to balloon to nearly a half trillion dollars in 2008 and then to 1.4 trillion in 2009.

Were a revenue situation to approach anything like this in the next recession, we would see Congress have to make some very hard choices about where to cut. Either that, or it will need to allow deficits to explode again. And if that happens — depending on how the Fed intervenes and how global investors react — there will be further upward pressure on interest rates paid to service US debt.

Perhaps most troubling of all, the US is still running deficits — and we’re in “boom” period. The US had a deficit of $778 billion dollars in 2018, just as unemployment was hitting historic lows. That, of course, doesn’t bode well for what would happen to deficits when a “bust” hits, income taxes fall, and revenues evaporate.

What might actually happen as the economy slows will be very difficult to guess since it’s impossible to know how the central banks of the world will react. But, we do know that any combination of falling revenue and rising interest rates will lead to a situation in which federal programs will either face real cuts — or the central bank will need to enact a new wave of money-supply inflation necessary to cover the federal revenue shortfall without allowing interest rates on government debt to rise dramatically.

Exactly how that will affect ordinary households in terms of price inflation is impossible to guess for now.

]]>Does the Necessary and Proper Clause Grant “Broad Authority” to Congress? Actually, None at Allhttps://tenthamendmentcenter.com/2018/10/27/does-the-necessary-and-proper-clause-grant-broad-authority-to-congress-actually-none-at-all/ Sat, 27 Oct 2018 12:50:04 +0000http://tenthamendmentcenter.com/?p=28018Probably no part of the Constitution has been so misunderstood as the Necessary and Proper Clause, which is located at Article I, Section 8, Clause 18. ]]>

Probably no part of the Constitution has been so misunderstood as the Necessary and Proper Clause, which is located at Article I, Section 8, Clause 18.

The Necessary and Proper Clause has been called both an “elastic clause” and a “sweeping clause,” and many have claimed it grants vast power to Congress. For example, a recent Supreme Court case, United States v. Comstock, stated that the “Necessary and Proper Clause grants Congress broad authority to enact federal legislation.”

In fact, most federal regulations today are justified by the Necessary and Proper Clause. They are said to be within Congress’s Interstate Commerce Power— but within not the core Commerce Clause (“The Congress shall have Power . . . To regulate Commerce . . . among the several States”). Rather, they are said to be supported by the accompanying authority to “make all Laws which shall be necessary and proper for carrying into Execution” the power to regulate commerce.

Now, here’s the irony of the situation: Far from granting “broad authority” to Congress, the truth is that Necessary and Proper Clause grants no power at all. It is placed at the end of Article I, Section 8 as an explanation—that is, a “recital.” A recital is a passage in a legal document that has no substantive legal effect, but serves to inform the reader of assumptions or facts behind the document. Another example of a recital in the Constitution is the Preamble.

In recent years, several constitutional scholars have investigated the true meaning of the Clause, and have worked to correct the record. The process began with an article written by Professor Gary L. Lawson and Patricia B. Granger: The Proper Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L. J. 267 (1994). It focused on the meaning of “proper.” A decade later, I delved into the historical record. I found that wording of this kind was extremely common in eighteenth-century documents granting power from one person to another. I also found the courts had issued cases interpreting this language, and that the Founders had adopted the courts’ interpretation. See articles here and here.

Finally, Professors Lawson and I teamed up with two other noted scholars, Geoff Miller, and Guy Seidman, and wrote a book on the subject. (We all have differing political views, by the way.) The book is called The Origins of the Necessary and Proper Clause, and it was published by Cambridge University Press.

Here’s what we found:

* The Clause is a mere recital. It informs the reader how to interpret congressional authority. It does not grant any power.

* The term “necessary” tells the reader that congressional authority is interpreted according to the intent behind the document, rather than very strictly (as the Articles of Confederation required).

* The Clause does this by telling the reader that the legal “doctrine of incidental powers” applies to the Constitution. This means that Congress can regulate certain activities outside the strict reading of its powers, but ONLY IF this ancillary regulation is (1) subordinate to an express power, and (2) a customary or necessary way of carrying out the express power. For example, in regulating commerce, Congress can require accurate labels on goods to be shipped in interstate commerce. But Congress cannot regulate the entire manufacturing process.

* The word “proper” means that a law must comply with Congress’s fiduciary (public trust) responsibilities. A law is not “proper”—and is therefore unconstitutional— if it invidiously discriminates among people, violates individual rights, is utterly irrational, or exceeds congressional authority.

* Contrary to prevailing legal mythology, Chief Justice Marshall’s famous case of McCulloch v. Maryland (1819) did not stretch the Clause, but applied it properly and with due regard for its limitations.

]]>Is Education a Constitutional Right?https://tenthamendmentcenter.com/2018/10/25/is-education-a-constitutional-right/ Thu, 25 Oct 2018 13:46:41 +0000http://tenthamendmentcenter.com/?p=28014An article in the September issue of The New Yorker makes the case that education is a fundamental right guaranteed by the Constitution. It’s not. Public schools in Detroit are failing to educate students. Just like they are failing to do so in many large cities throughout the country. A case in the federal court system, Gary B. […]]]>

An article in the September issue of The New Yorker makes the case that education is a fundamental right guaranteed by the Constitution.

It’s not.

Public schools in Detroit are failing to educate students. Just like they are failing to do so in many large cities throughout the country. A case in the federal court system, Gary B. v. Snyder, filed by Public Counsel and Sidley Austin LLP on behalf of a class of Detroit students, argues that students in Detroit public schools who failed to learn how to read were denied their due process and equal protection rights under the Constitution’s Fourteenth Amendment. The case was dismissed by a federal district court in Michigan in June, but has been appealed to the Sixth Circuit Court of Appeals in Cincinnati.

The case came about after Texas education laws were changed in 1975 to allow the state to withhold funding from local school districts to educate the children of illegal aliens. The Court, by a 5-4 vote, ruled that the revised law violated the equal protection clause of the Fourteenth Amendment. The law “severely disadvantaged the children of illegal aliens” by “denying them the right to an education.”

But of course, the law didn’t deny the children of illegals the right to an education; it denied them the right to an education at taxpayers’ expense. Their parents could have educated them at home, hired a tutor, or sent them to a private school. The fact that the parents didn’t have the ability to educate their children at home and couldn’t afford to hire a tutor or send their children to a private school is immaterial.

But regardless of what the Supreme Court said, education is not a constitutional right.

The Constitution doesn’t grant rights; the Constitution guarantees rights. The Constitution specifically guarantees certain natural rights, imposes limits on the government’s power, and explicitly declares that all powers not delegated to the federal government by the Constitution are reserved to the states or the people.

The United States was set up as a federal system of government where the states, through the Constitution, granted a limited number of powers to a central government. As James Madison succinctly explained in Federalist No. 45:

The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.

There are about thirty enumerated congressional powers listed throughout the Constitution. Most of those powers are found in the eighteen paragraphs of Article I, Section 8. One concerns commerce. One concerns naturalization and bankruptcies. One concerns post offices and post roads. One concerns copyrights and patents. One concerns federal courts. One concerns maritime crimes. One concerns the governance of the District of Columbia. Four of them concern taxes and money. Six concern the militia and the military. The last one—the “elastic” clause—gives Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”

Elsewhere in the Constitution we read that Congress may also admit new states into the Union, propose amendments to the Constitution, regulate national elections, establish courts inferior to the Supreme Court, direct the location of the place for the trial of a crime not committed within a state, declare the punishment for treason, provide the manner in which the public acts and records in each state are accepted by the others, dispose of and regulate the territory or other property of the United States, give the states consent to lay imposts or duties on imports or exports, and provide for the case of the removal, death, resignation, or inability of the president or vice president.

Everything else is reserved to the states—even without the addition of the Bill of Rights and its Tenth Amendment.

But what about the Fourteenth Amendment?

The Fourteenth Amendment, ratified in 1868, says that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

I would ask the same question: What about the Fourteenth Amendment? What does the Fourteenth Amendment have to do with the education of the children of illegal aliens? Absolutely nothing, of course. They are not citizens, they are not being deprived of life, liberty, or property, and they are not being denied the equal protection of the laws.

Although all states have provisions in their constitutions for public education, they do not have to have such provisions. Education is not a natural right. But whether they do or don’t have such provisions, education is strictly and entirely a state matter.

And neither does the Constitution authorize the federal government to spend one penny on education.

If there is no constitutional right to receive basic necessities like housing, clothing, and food, then there is certainly no constitutional right to receive a government-provided or government-funded education.

]]>A Lesson in Legislationhttps://tenthamendmentcenter.com/2018/10/23/a-lesson-in-legislation/ Tue, 23 Oct 2018 12:10:30 +0000http://tenthamendmentcenter.com/?p=27654Activism requires human action. Many armchair activists fall into the relative comfort of keyboard warfare on social media platforms. With great fervency and zeal, they take controversial positions and make provocative statements, defending their viewpoints by arguing incessantly with people who were never going to be swayed from the beginning. Most of us know folks […]]]>

Activism requires human action. Many armchair activists fall into the relative comfort of keyboard warfare on social media platforms. With great fervency and zeal, they take controversial positions and make provocative statements, defending their viewpoints by arguing incessantly with people who were never going to be swayed from the beginning. Most of us know folks like this. Some of us might even be these folks on occasion.

I mean, I get it. I understand the importance of messaging. We want to communicate and spread the tenets, principles and philosophies we so passionately believe. We feel a sense of obligation to message on behalf of liberty It becomes easy to get sucked into discussions and debates. Admittedly, there’s a small chance you might help a wayward friend get “woke.” In reality, there is a higher probability that you’ll only walk away with elevated blood pressure.

If you have a passion for activism, don’t allow it to get lost the comment thread wasteland of social media. Instead, try inserting yourself into an issue that you care deeply about at the state or local level.

Local and state arenas are prime hunting grounds for us to affect the most change and push back against oversized, overreaching government. This is where we can influence state governments to ignore or nullify unconstitutional federal laws. Evidence of this has recently been demonstrated in some of the advances made with regard to marijuana and warrantless surveillance.

In order to obtain the kind of change we desire, it will require more than online debate. It will require actual human involvement. It will mean taking the passion and dedication we demonstrate online and joining them with tangible effort, work and planning in order to move the dial toward liberty. Accordingly, there are some tools that need to employ to achieve real results, including moving bills through state legislatures. To do that, we need to understand how legislation becomes law.

By saying “how a bill becomes a law,” I’m not referring to the classic Schoolhouse Rock cartoon. I’m talking about having an intimate, working knowledge of the legislative process.

You will find similarities from state to state, however, there are some procedural variations from one state to the next. In what follows, I will provide a general overview of how state legislative processes function. It is my hope that this overview can be a useful tool to those who hope to apply the wonders of nullification in their own home state.

Legislation – A Bill Isn’t Always Just A Bill.

A bill is a proposal for enacting a new law, amending an existing law, repealing of existing law, or for the appropriation of public money. Other types of bills include resolutions and legislation initiates the process to amend the state constitution.

A resolution is a formal legislative document expressing the opinion or sentiment of one or both legislative chambers. Resolutions generally don’t carry the force of law and in many states do not require the signature of the governor.

Each state has its own process for enacting constitutional amendments.

And Now A Word From Our Sponsor…

Bills start as ideas. Bill language can come from businesses, lobbyists, special interest groups, constituents, or from the legislators themselves.

Before a bill can be introduced for consideration, it must first be sponsored. Legislation must have at least one primary sponsor and can usually have any number of cosponsors. Cosponsors are generally not required, but having them is a sign of support from within the legislative body.

Bipartisan sponsorship indicates that legislators are willing to come across the aisle to work with opposition counterparts on points of common interest. Conversely, partisan sponsorship might demonstrate a bill that is important to a particular party’s agenda, platform or voter base. Colleagues from within the same party may dogpile onto a bill of this nature. Come election time, politicians love to be able to tell the folks back home about all the things they did for them while at the capital. Having their names attached to legislation can usually be spun up in the eyes of their voter base.

Some states also allow a bill to be sponsored by a House or Senate committee. In some cases, such as in Alaska, a bill can even be introduced by the governor through the Rules Committee.

Allow Me To Introduce…Bill

Once sponsored, a bill can be officially introduced. In most cases, this involves submission to the chamber clerk (or similar administrative office) where it is assigned a number. In some instances, as required by state law, the bill’s number, title and primary sponsor are recorded in the House or Senate journals. More often, the bill is read by number, title and sponsor on the open floor of the respective chamber it is being introduced to.

Once read and/or entered, the bill is referred to the appropriate standing committee depending on the bill’s subject matter. Committees are very important to legislators. They have committees for everything. Some legislatures even have a Committee On Committees — that is a committee that decides which committee receives the bill.

Once assigned to a committee, the chairperson has a great deal of control over the future of the legislation. The chair generally determines whether or not a bill will receive a hearing and a vote. In some states, the chairperson can assign the bill to a subcommittee to review, debate and discuss the bill and report its conclusions to the full body. A committee chair can kill legislation simply by refusing to give it a hearing.

Committees normally dispatch their duties in five different ways.

Report the bill favorably with recommendations to amend or otherwise.

Send it to the floor for debate without recommendations.

Report the bill unfavorably.

Postpone the bill indefinitely.

Take no action/issue no report-the bill fails.

Other duties powers and responsibilities of the committee include:

Holding public hearings for constituents, state agency representatives, and legislators for all bills it wishes to consider.

Amending the bill

Combining the bill with other bills.

Referring the legislation to a different committee.

Some states have a single committee process. In other states, the bill has to pass multiple committees before moving to the full House or Senate.

Read Me

Once a bill passes through all of its required committees, it is placed on the House or Senate calendar for further action. The calendar lists bills that are eligible for debate. A bill considered important may be brought up for consideration by the chamber ahead of the other bills listed before it on the calendar. The Speaker of the House and President of the Senate (some states use different titles) generally control which bills make it to the floor for a debate and vote.

It Seems To Be Passing…Like A Kidney Stone

Upon reaching it’s specifically assigned day, a motion can be made (usually by the majority floor leader) for the bill to be taken from the Orders of the Day, read for the third time by title only and placed upon its passage. If the motion carries, the floor is open for debate and amendments. Keep in mind that amendments can take the form of deletions as well as additions. A bill, in its original form, can take on a completely different (if not entirely unrecognizable) look and meaning as this process unfolds. If through debate, the chamber concludes a bill needs to be sent back to a committee, they will vote to do so and await the next committee report. If no further committee work is required and debates and amendments have been concluded, a final vote on the bill is taken. A majority vote of the members present and voting is usually enough to pass the bill.

So, Pass Or Fail, What Happens Next?

If a bill is defeated, it is not likely to receive another vote. It is essentially dead at that point. Some states have rules in place that allow a defeated bill to be brought up for reconsideration, but this does not happen very often.

After the bill passes one chamber, it moves to the other and goes through pretty much the same process.

Both chambers must agree on the final form of the bill. If the second chamber passes an amended version of the bill, it will go back to the originating chamber for concurrence. If the originating chamber fails to concur with amendments, the legislation will go to a conference committee. Conference committees are comprised of both senators and representatives and are designed to overcome objections and differences through compromise. Changes agreed to by this committee are subject to the approval of both chambers. If one or both chambers rejects the changes, the bill fails. If the bill passes both chambers, it is checked very carefully to ensure that all wording is correct, then it is signed by the presiding officers of both chambers and passed on to the governor.

A Law Is Born

In most states, the governor can do one of three things with a bill and has a limited amount of time in which to act. The amount of time varies, depending on a number of factors.

Sign it.

Veto it.

Take no action.

The bill becomes a law if the governor signs it. Additionally, in most states, if the governor takes no action within the allotted time, the bill becomes law. But in some states, a governor can “pocket-veto” a bill by taking no action. In that case, the bill is dead.

In most state, if the governor vetoes the bill, it is returned to the chamber from which it originated and the legislature can attempt to override the governor’s veto. It usually requires a 2/3 majority vote to override (3/4 in some states). If successful, the bill is then sent to the other chamber and the same test is applied. If both chambers vote to overturn the veto, the bill becomes law.

Knowing the legislative processes in your state will give you a better sense of how to work within the state’s political system to move legislation forward. This is crucial knowledge to have as you work to affect change in your community.

If you would like to learn more about the specific legislative process in your state, StateScape has a delightful compendium of all 50 states, as well as the District of Columbia, Guam and Puerto Rico.

The real problems with newly anointed Supreme Court Justice Brett Kavanaugh got completely lost in the political theater surrounding his confirmation.

The Constitution delegates the power to appoint justices to the Supreme Court to the president with the advice and consent of the Senate. Justices hold their position for life (during good behavior). The intent was to elevate the process, transcending the political influence inherent in the other branches of government, rendering those serving on the High Court immune to petty politics.

We saw how well that played out with President Trump’s nomination of Brett Kavanaugh to the SCOTUS. Partisan politics and grandstanding turned the confirmation process into a circus. Rather than discussing issues such as the proper role of the judiciary, federalism. and maybe even the concept of limited government, the Judiciary Committee zeroed in on unsubstantiated claims of sexual misconduct from the 1980s, flatulence and beer drinking.

The progressive left became wholly consumed with all of the above while so-called conservatives reveled in left-wing outrage, disregarding fundamental principles of liberty, particularly those concerning our right to be left alone. Specifically, the Senate completely ignored Kavanaugh’s long history of supporting warrantless surveillance; namely, his rubber stamp on NSA programs that vacuum up reams of Americans’ personal data.

With regard to the bulk collection of metadata by the NSA, Jude Kavanaugh declared it “entirely consistent” with the Fourth Amendment.

“The Government’s collection of telephony metadata from a third party such as a telecommunications service provider is not considered a search under the Fourth Amendment, at least under the Supreme Court’s decision in Smith v. Maryland, 442 U.S. 735 (1979). That precedent remains binding on lower courts in our hierarchical system of absolute vertical stare decisis.”

Kavanaugh based his opinion on the so-called third-party doctrine. In simple terms, this legal precedent assumes that when you give information to a third party, such as a bank or an internet service provider, you forfeit any right to privacy.

He went on to say he believed seizing metadata would still be legal even absent the third-party doctrine

“The Fourth Amendment allows governmental searches and seizures without individualized suspicion when the Government demonstrates a sufficient ‘special need’—that is, a need beyond the normal need for law enforcement—that outweighs the intrusion on individual liberty,” he wrote. “Examples include drug testing of students, roadblocks to detect drunk drivers, border checkpoints, and security screening at airports … The Government’s program for bulk collection of telephony metadata serves a critically important special need – preventing terrorist attacks on the United States. See THE 9/11 COMMISSION REPORT (2004). In my view, that critical national security need outweighs the impact on privacy occasioned by this program. The Government’s program does not capture the content of communications, but rather the time and duration of calls, and the numbers called. In short, the Government’s program fits comfortably within the Supreme Court precedents applying the special needs doctrine.”

The Fourth Amendment states the following:

“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.”

Note the Fourth Amendment does not include an exception for information that you entrust to a third party, nor for “special needs.”

Many argue that collecting metadata isn’t all that intrusive. Kavanaugh alluded to this when he mentioned the NSA program does not capture “the content of communications.” But as cybersecurity expert Gregory Carpenter explains, metadata can reveal a great deal about you.

“Metadata is information that explains and identifies information about other data. A web page can have metadata on it, for example, metadata tags that tell you how big the page is, what the content is, but doesn’t exactly reveal what the content is; it identifies the parameters of the data on the page. In regards to telecommunication, metadata can explain the duration, the context, but not the content and the connection between the different phones, the services they use and the applications that are used on the phones and the duration of use for each application as well as number of and size of text messages on an Android, an iPhone or any of the text applications.

“Metadata can also tell the time between the text messages and telephone call, and it can identify if you go back and forth between different communication venues to speak with someone. If can also draw out a pattern and identify a social network from interaction between telephones, computers, or any other type of IT network you use to communicate with someone.”

Metadata also includes location information. Think about what you can learn about somebody based on where they go.

A Guardian reporter did an interesting experiment tracking his own metadata for 24 hours. As you read through his log, it becomes clear just how much information you can glean about a person.

Those who claim government agencies gathering metadata is consistent with the Fourth Amendment base their position on the premise that the government isn’t really learning anything personal or significant about you. If they do need to learn more, then they must get a warrant — the promise. After the 9/11 attacks, the bulk collection of data became part and parcel of the War on Terror. Most “patriots” considered this a small price to pay for national security. After all, some of the new surveillance authority came via something called the Patriot Act. Besides, why worry if you have nothing to hide?

But consider this: would you be OK with the government going to your mailbox every day, scanning your mail, and storing it forever, as long as the feds promised they wouldn’t actually open the mail unless they got a warrant?

Probably not.

And another question: would the Founders have considered this behavior at odds with our right to be secure in our persons, houses, papers and effects?

Without question.

In his book Compact of the Republic, David Benner discusses writs of assistance. Writs should not be confused with warrants, which require a higher level of government scrutiny, including review by and approval by a judge. Writs were much broader in scope, as Benner explains. They did not require an itemized list of things to be seized and they never expired. Further, they were drafted and approved they the very agency doing the searching.

Compare that to the stringent warrant requirements of the Fourth Amendment. That was the very point of the Fourth Amendment. The intent was to ensure writs would never plague Americans again.

Writs were used to enforce protectionist economic policies implemented by the Crown. They effectively created corporate monopolies. Accordingly, Americans seeking to trade with other countries could only do so if sanctioned by Parliament. The practice, says Benner, was necessary to enforce British policy while at the same time violating the sanctity of private property.

Writs of assistance were a flashpoint in the years leading up to the Revolution. James Otis Jr. argued strenuously against their constitutionality in what came to be known as Paxton’s case. He did not prevail, but his fiery oration heavily influenced John Adams and other revolutionary leaders. Otis vividly described the indignity of the writs.

Now, one of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court can inquire. Bare suspicion without oath is sufficient.

This wanton exercise of this power is not a chimerical suggestion of a heated brain. I will mention some facts. Mr. Pew had one of these writs, and, when Mr. Ware succeeded him, he endorsed this writ over to Mr. Ware; so that these writs are negotiable from one officer to another; and so your Honors have no opportunity of judging the persons to whom this vast power is delegated. Another instance is this: Mr. Justice Walley had called this same Mr. Ware before him, by a constable, to answer for a breach of the Sabbath-day Acts, or that of profane swearing. As soon as he had finished, Mr. Ware asked him if he had done. He replied, “Yes.” “Well then,” said Mr. Ware, “I will show you a little of my power. I command you to permit me to search your house for uncustomed goods” — and went on to search the house from the garret to the cellar; and then served the cons

NSA spying rests on a premise eerily similar to 18th-century writs of assistance. The federal government essentially claims the authority to store vast amounts of personal data forever and access it at any time, all in the name of national security – or as Kavanaugh termed it for “special needs.”

The government assures us we need not worry. It will get a warrant pursuant to the Fourth Amendment before it digs any deeper into our electronic communications. But consider how much information the government can glean from metadata alone, and then ask yourself: is that not a significant enough violation of your privacy to warrant protection from government intrusion?

Think about it: the government claims the authority to capture and indefinitely store every conversation you have, be it oral or written, so long as it’s electronic, just in case the government decides it needs it. Would you be OK with the government gathering up all of your written correspondence and storing it away for future perusal? Would you trust the government to get a warrant before accessing that information? Do you really trust the government at its word, especially given revelations of corruption too numerous to count?

The founding generation would not have put such trust in the British Crown. In fact, it didn’t. And the founders went to great lengths to ensure that those who would live under the post-Revolution government under the United States Constitution would not have to either.

Unfortunately, this discussion wasn’t in the script for the political theater of Kavanaugh’s confirmation hearing. It should have been.

Michael Maharrey contributed to this article

]]>Creating a Suspect Societyhttps://tenthamendmentcenter.com/2018/10/19/creating-a-suspect-society/ Fri, 19 Oct 2018 11:36:37 +0000http://tenthamendmentcenter.com/?p=27696Consider all the ways we continue to be tracked, hunted, hounded, and stalked by the government and its dubious agents]]>

It’s a given that Big Brother is always watching us.

Unfortunately, thanks to the government’s ongoing efforts to build massive databases using emerging surveillance, DNA and biometrics technologies, Big Brother (and his corporate partners in crime) is getting even creepier and more invasive, intrusive and stalker-like.

Indeed, every dystopian sci-fi film (and horror film, for that matter) we’ve ever seen is suddenly converging into this present moment in a dangerous trifecta between science and technology, Big Business, and a government that wants to be all-seeing, all-knowing and all-powerful—but not without help from the citizenry.

On a daily basis, Americans are relinquishing (in many cases, voluntarily) the most intimate details of who we are—our biological makeup, our genetic blueprints, and our biometrics (facial characteristics and structure, fingerprints, iris scans, etc.)—in order to navigate an increasingly technologically-enabled world.

As journalist Anna Myers notes, “Fingerprint readers, eye scans, and voice recognition are no longer just the security methods of high-tech spy movies. Millions of mobile phone, bank, and investment customers now have these technologies at their fingertips. Schwab uses voice recognition, Apple uses fingerprints, Wells Fargo scans eyes, and other companies are developing heartbeat or grip technology to verify user identity. Whether biometric technology will thrive or meet its demise depends not only on the security of the technology, but also whether the U.S. legal system will adapt to provide the privacy protections necessary for consumers to use it and for companies to invest in its development. Currently there is no federal law and only one state with a law protecting biometric information.”

Translation: thus far, the courts have done little to preserve our rights in the face of technologies and government programs that have little respect for privacy or freedom.

Consider all the ways we continue to be tracked, hunted, hounded, and stalked by the government and its dubious agents:

Nevertheless, they have become a convenient tool in the hands of government agents to render null and void the Constitution’s requirements of privacy and its prohibitions against unreasonable searches and seizures.

Increasingly, we are all guilty until proven innocent as the government’s questionable acquisition and use of biometrics and DNA to identify individuals and “solve” crimes makes clear.

Indeed, for years now, the FBI and Justice Department have conspired to acquire near-limitless power and control over biometric information collected on law-abiding individuals, millions of whom have never been accused of a crime.

Going far beyond the scope of those with criminal backgrounds, the FBI’s Next Generation Identification database (NGID), a billion dollar boondoggle that is aimed at dramatically expanding the government’s ID database from a fingerprint system to a vast data storehouse of iris scans, photos searchable with face recognition technology, palm prints, and measures of gait and voice recordings alongside records of fingerprints, scars, and tattoos.

Launched in 2008, the NGID is a massive biometric database that contains more than 100 million fingerprints and 45 million facial photos gathered from a variety of sources ranging from criminal suspects and convicts to daycare workers and visa applicants, including millions of people who have never committed or even been accused of a crime.

In other words, innocent American citizens are now automatically placed in a suspect database.

For a long time, the government was required to at least observe some basic restrictions on when, where and how it could access someone’s biometrics and DNA and use it against them.

That is no longer the case.

The information is being amassed through a variety of routine procedures, with the police leading the way as prime collectors of biometrics for something as non-threatening as a simple moving violation. The nation’s courts are also doing their part to “build” the database, requiring biometric information as a precursor to more lenient sentences. And of course Corporate America has made it so easy to use one’s biometrics to access everything from bank accounts to cell phones.

We’ve made it so easy for the government to target, identify and track us—dead or alive.

Whereas fingerprint technology created a watershed moment for police in their ability to “crack” a case, DNA technology is now being hailed by law enforcement agencies as the magic bullet in crime solving.

At that time, Justice Antonin Scalia warned that as a result of the Court’s ruling, “your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason.”

Now, Americans are vulnerable to the government accessing, analyzing and storing their DNA without their knowledge or permission.

As the dissenting opinion in Raynor for the Maryland Court of Appeals rightly warned, “a person desiring to keep her DNA profile private, must conduct her public affairs in a hermetically sealed hazmat suit…. The Majority’s holding means that a person can no longer vote, participate in a jury, or obtain a driver’s license, without opening up his genetic material for state collection and codification.”

All 50 states now maintain their own DNA databases, although the protocols for collection differ from state to state. That DNA is also being collected in the FBI’s massive national DNA database, code-named CODIS (Combined DNA Index System), which was established as a way to identify and track convicted felons and has since become a de facto way to identify and track the American people from birth to death.

Indeed, hospitals have gotten in on the game by taking and storing newborn babies’ DNA, often without their parents’ knowledge or consent. It’s part of the government’s mandatory genetic screening of newborns. However, in many states, the DNA is stored indefinitely.

What this means for those being born today is inclusion in a government database that contains intimate information about who they are, their ancestry, and what awaits them in the future, including their inclinations to be followers, leaders or troublemakers.

For the rest of us, it’s just a matter of time before the government gets hold of our DNA, either through mandatory programs carried out in connection with law enforcement and corporate America, or through the collection of our “shed” or “touch” DNA.

While much of the public debate, legislative efforts and legal challenges in recent years have focused on the protocols surrounding when police can legally collect a suspect’s DNA (with or without a search warrant and whether upon arrest or conviction), the question of how to handle “shed” or “touch” DNA has largely slipped through without much debate or opposition.

We all shed DNA, leaving traces of our identity practically everywhere we go. Forensic scientists use DNA left behind on cigarette butts, phones, handles, keyboards, cups, and numerous other objects, not to mention the genetic content found in drops of bodily fluid, like blood and semen. In fact, the garbage you leave for curbside pickup is a potential gold mine of this sort of material. All of this shed or so-called abandoned DNA is free for the taking by local police investigators hoping to crack unsolvable cases. Or, if the future scenario depicted at the beginning of this article is any indication, shed DNA is also free for inclusion in a secret universal DNA databank.

What this means is that if you have the misfortune to leave your DNA traces anywhere a crime has been committed, you’ve already got a file somewhere in some state or federal database, albeit it may be a file without a name.

In other words, you’re a suspect to be watched.

As Forensic magazine reports, “As officers have become more aware of touch DNA’s potential, they are using it more and more. Unfortunately, some [police] have not been selective enough when they process crime scenes. Instead, they have processed anything and everything at the scene, submitting 150 or more samples for analysis.”

Even old samples taken from crime scenes and “cold” cases are being unearthed and mined for their DNA profiles.

Today, helped along by robotics and automation, DNA processing, analysis and reporting takes far less time and can bring forth all manner of information, right down to a person’s eye color and relatives. Incredibly, one company specializes in creating “mug shots” for police based on DNA samples from unknown “suspects” which are then compared to individuals with similar genetic profiles.

If you haven’t yet connected the dots, let me point the way.

Having already used surveillance technology to render the entire American populace potential suspects, DNA technology in the hands of government will complete our transition to a suspect society in which we are all merely waiting to be matched up with a crime.

No longer can we consider ourselves innocent until proven guilty. Now we are all suspects in a DNA lineup until circumstances and science say otherwise.

Of course, there will be those who point to DNA’s positive uses in criminal justice, such as in those instances where it is used to absolve someone on death row of a crime he didn’t commit, and there is no denying its beneficial purposes at times.

However, as is the case with body camera footage and every other so-called technology that is hailed as a “check” on government abuses, in order for the average person—especially one convicted of a crime—to request and get access to DNA testing, they first have to embark on a costly, uphill legal battle through red tape and, even then, they are opposed at every turn by a government bureaucracy run by prosecutors, legislatures and law enforcement.

What this amounts to is a scenario in which we have little to no defense of against charges of wrongdoing, especially when “convicted” by technology, and even less protection against the government sweeping up our DNA in much the same way it sweeps up our phone calls, emails and text messages.

Yet if there are no limits to government officials being able to access your DNA and all that it says about you, then where do you draw the line?

As technology makes it ever easier for the government to tap into our thoughts, our memories, our dreams, suddenly the landscape becomes that much more dystopian.

With the entire governmental system shifting into a pre-crime mode aimed at detecting and pursuing those who “might” commit a crime before they have an inkling, let alone an opportunity, to do so, it’s not so far-fetched to imagine a scenario in which government agents (FBI, local police, etc.) target potential criminals based on their genetic disposition to be a “troublemaker” or their relationship to past dissenters.

These genetic fingerprints, as they’re called, do more than just single out a person. They also show who you’re related to and how. As the Associated Press reports, “DNA samples that can help solve robberies and murders could also, in theory, be used to track down our relatives, scan us for susceptibility to disease, or monitor our movements.”

Who will protect your family from being singled out for “special treatment” simply because they’re related to you? As biomedical researcher Yaniv Erlich warns, “If it’s not regulated and the police can do whatever they want … they can use your DNA to infer things about your health, your ancestry, whether your kids are your kids.”

For that matter, how do you protect yourself against having your DNA extracted, your biometrics scanned and the most intimate details of who you are—your biological footprint—uploaded into a government database?

What recourse do you have when that information, taken against your will, is shared, stolen, sold or compromised, as it inevitably will be in this age of hackers? We know that databases can be compromised. We’ve seen it happen to databases kept by health care companies, motor vehicle agencies, financial institutions, retailers and intelligence agencies such as the NSA.

And what about those cases in which the technology proved to be wrong, either through human error or tampering?

It happens more often than we are told.

For example, David Butler spent eight months in prison for a murder he didn’t commit after his DNA was allegedly found on the murder victim and surveillance camera footage placed him in the general area the murder took place. Conveniently, Butler’s DNA was on file after he had voluntarily submitted it during an investigation years earlier into a robbery at his mother’s home.

The case seemed cut and dried to everyone but Butler who proclaimed his innocence.

Unfortunately, we now find ourselves in the unenviable position of being monitored, managed, convicted and controlled by our technology, which answers not to us but to our government and corporate rulers.

This is the fact-is-stranger-than-fiction lesson that is being pounded into us on a daily basis.

While the Fourth Amendment was created to prevent government officials from searching an individual’s person or property without a warrant and probable cause—evidence that some kind of criminal activity was afoot—the founders could scarcely have imagined a world in which we needed protection against widespread government breaches of our privacy on a cellular level.

Yet that’s exactly what we are lacking.

Once again, technology has outdistanced both our understanding of it and our ability to adequately manage the consequences of unleashing it on an unsuspecting populace.

]]>Worst in Six Years: Trump Administration Posts Massive Budget Deficithttps://tenthamendmentcenter.com/2018/10/16/worst-in-seven-years-trump-administration-posts-massive-budget-deficit/ Tue, 16 Oct 2018 19:39:43 +0000http://tenthamendmentcenter.com/?p=27691The 2018 fiscal year ended Sept. 30 and the U.S. government closed out the year with its largest budget deficit since 2012, according to the most recent Treasury Department report. Uncle Sam ended 2018 $779 billion in the red, adding to the ballooning national debt. A combination of new federal spending and shrinking revenue due […]]]>

The 2018 fiscal year ended Sept. 30 and the U.S. government closed out the year with its largest budget deficit since 2012, according to the most recent Treasury Department report. Uncle Sam ended 2018 $779 billion in the red, adding to the ballooning national debt.

A combination of new federal spending and shrinking revenue due to the Trump tax cuts accounted for the large deficit.

To make sure we’re clear on terms, the deficit represents the amount of money the government spends each year above and beyond the amount of revenue it brings in. So, if the federal government spend $2 and collects $1 in revenue, it will run a $1 deficit. The debt represents the cumulative amount of all of the deficits. So if the government ran that $1 deficit for five years, it would end up with a $5 debt.

According to the Treasury Department, the 2018 fiscal deficit was $113 billion (17%) larger than the 2017 deficit. If you adjust for calendar effects (for instance, revenues come in higher during months when quarterly tax filings come due) the gap between fiscal 17 and fiscal 18 came in even larger.

Analysts both inside and outside the government project the deficit will balloon to over $1 trillion annually, perhaps as early as fiscal 2019.

According to Reuters, the Bipartisan Policy Center called the Treasury report a “wakeup call.”

The fact that our government is closing in on trillion-dollar deficits in the midst of an economic expansion should be a serious issue for voters and candidates.”

According to the Treasury report, the rising cost of servicing the existing debt also contributed to the escalating deficit. Interest payments continue to rise as rates go up.

A combination of intentional Federal Reserve monetary tightening, along with normal supply and demand, account for elevating interest rates. Rapidly increasing yields on 10-year Treasury bonds were a major factor in the recent stock market selloff. Earlier this year, the U.S. Treasury Department said it planned to auction off around $1.4 trillion in Treasuries in 2018 alone. And it won’t end there. The department expects that pace of borrowing to continue over the next several years.

Obviously, rising interest rates aren’t good news when you’re trying to finance increasing levels of debt. Growing debt coupled with soaring interest payments creates a vicious upwardly spiraling cycle. As debt grows, it costs more money to service it. That requires more borrowing, which adds to the debt, which increases the interest payments — and on and on it goes.

Interest payments on the national debt already approach $500 billion annually. Every uptick in the interest rate increases that number. At the current trajectory, the cost of paying the annual interest on the U.S. debt will equal the annual cost of Social Security within 30 years.

But will we actually get the promised growth as the debt continues to swell?

High levels of debt eat away at economic growth. Several studies have estimated that economic growth slows by about 30 percent when the debt to GDP ratio rises to about 90 percent. Most analysts say the U.S. economy is already in the 105 percent debt-to-GDP ratio range. Most economists believe the tax cuts have boosted the economy, but the boost will likely end up short-lived unless Uncle Sam gets his spending problem under control.

]]>Ten Years After the Last Meltdown: Is Another One Around the Corner?https://tenthamendmentcenter.com/2018/10/15/ten-years-after-the-last-meltdown-is-another-one-around-the-corner/ Mon, 15 Oct 2018 23:57:40 +0000http://tenthamendmentcenter.com/?p=27690The only way this cycle can be broken without a major crisis is for Congress both to restore people’s right to use the currency of their choice and to audit and then end the Fed.]]>

September marked a decade since the bursting of the housing bubble, which was followed by the stock market meltdown and the government bailout of the big banks and Wall Street. Last week’s frantic stock market sell-off indicates the failure to learn the lesson of 2008 makes another meltdown inevitable.

In 2001-2002 the Federal Reserve responded to the economic downturn caused by the bursting of the technology bubble by pumping money into the economy. This new money ended up in the housing market. This was because the so-called conservative Bush administration, like the “liberal” Clinton administration before it, was using the Community Reinvestment Act and government-sponsored enterprises Fannie Mae and Freddie Mac to make mortgages available to anyone who wanted one — regardless of income or credit history.

Banks and other lenders eagerly embraced this “ownership society”’ agenda with a “lend first, ask questions when foreclosing” policy. The result was the growth of subprime mortgages, the rush to invest in housing, and millions of Americans finding themselves in homes they could not afford.

When the housing bubble burst, the government should have let the downturn run its course in order to correct the malinvestments made during the phony, Fed-created boom. This may have caused some short-term pain, but it would have ensured the recovery would be based on a solid foundation rather than a bubble of fiat currency.

Of course Congress did exactly the opposite, bailing out Wall Street and the big banks. The Federal Reserve cut interest rates to historic lows and embarked on a desperate attempt to inflate the economy via QE 1, 2, and 3.

Low interest rates and quantitative easing have left the Fed with a dilemma. In order to avoid a return to 1970s-era inflation — or worse, it must raise interest rates and draw down its balance sheet. However, raising rates too much risks popping what financial writer Graham Summers calls the “everything bubble.”

Today credit card debt is over a trillion dollars, student loan debt is at 1.5 trillion dollars, there is a bubble in auto loans, and there is even a new housing bubble. But the biggest part of the everything bubble is the government bubble. Federal debt is over 21 trillion dollars and expanding by tens of thousands of dollars per second.

The Fed is unlikely to significantly raise interest rates because doing so would cause large increases in federal government debt interest payments. Instead, the Fed will continue making small Increases while moving slowly to unwind its balance sheet, hoping to gradually return to a “normal” monetary policy without bursting the “everything bubble.”

The Fed will be unsuccessful in keeping the everything bubble from exploding. When the bubble bursts, America will experience an economic crisis much greater than the 2008 meltdown or the Great Depression.

This crisis is rooted in the failure to learn the lessons of 2008 and of every other recession since the Fed’s creation: A secretive central bank should not be allowed to manipulate interest rates and distort economic signals regarding market conditions. Such action leads to malinvestment and an explosion of individual, business, and government debt. This may cause a temporary boom, but the boom soon will be followed by a bust. The only way this cycle can be broken without a major crisis is for Congress both to restore people’s right to use the currency of their choice and to audit and then end the Fed.

]]>Even Rocks Have Rightshttps://tenthamendmentcenter.com/2018/10/14/even-rocks-have-rights/ Sun, 14 Oct 2018 11:05:42 +0000http://tenthamendmentcenter.com/?p=27681This seems like a strange, maybe even oxymoronic topic. Yet because of the simple nature of a rock, you may soon experience the most profound understanding of human rights you have ever had. So bear with me a moment while I set the stage. I keep a rock next to me on my desk while […]]]>

This seems like a strange, maybe even oxymoronic topic. Yet because of the simple nature of a rock, you may soon experience the most profound understanding of human rights you have ever had. So bear with me a moment while I set the stage.

I keep a rock next to me on my desk while I write about rights. It’s a special rock is from my flower bed. For me, it represents the extraordinary yet ordinary citizen of the U.S. It’s just another rock but there is not another one exactly like it anywhere in the universe.

Galaxies and Rocks

Rocks, or their equivalent, make up most of the mass of the galaxies. Our planet is almost entirely solid, loose, or liquid rock. And the galaxies appear to be the same. Now I say all these rocks have rights, and if they do, it seems like we ought to know what they are. Let me show you what they are.

I’ll bet you have some rocks in that flower bed closest to your door. If you have the fun of working in that flower bed, you may decide that your rights supersede the rights of those rocks, and you will move them to some other place. Rocks have rights? Stay with me a minute because here’s the thing: You can remove a rock from its place but you can’t remove its space from the rock.

The space a stone occupies belongs to that stone. It owns that space. That space is the property right of that stone and there is not a thing you can do about it. That property right is natural, inalienable and immutable. Rocks have rights. You bet. Not sure? Then how are you going to keep that stone from taking up its space?

Rocks with Rights Is Too Much for You?

Now some will have a hard time with the idea of rocks having rights. I understand that. So let’s forget all about rights for a moment. A right doesn’t really exist in the physical world anyway. A “right” is an abstract legal concept we use for convenience while we think about the authority something has over itself. So, let’s forget about the abstraction and talk about physical reality.

All the critters and all the plants each do their thing. They grow. Some of them move around and some of them, like the apes, even have some real thinking ability. In the solar system, the heavenly bodies are under the power of gravity which does its thing. When a human being does something, he can be thought of as having authority over himself to do that thing. So we draw out, or abstract that fact so as to focus on it, and we give that authority the name of “a right”. If a bird doesn’t have the authority to build a nest, how can it possibly do that? Authority doesn’t have to be granted by someone in order to exist. In fact, that is the essence of a natural right. It is just naturally there, it’s inherent.

If that makes sense, why can’t we also talk about the apes having rights, and if apes then robins, and then worms and then the planets themselves? If some “thing” can do something, then it must have authority to do it. Ascribing that authority is just another abstraction that lets us see things in a new light. We can learn a lot from this. Stay with me a while and see if you don’t get some real understanding and insights about your rights. Anyway, back to the rocks.

You have property rights just like the rock. That’s the first lesson you can learn about rights. And here is the next lesson. You can try to violate the property rights of a rock but there is only one way you can do it: crush it into gravel or grind it to powder. But now you don’t have a rock anymore; you have gravel or dirt. That proves that the property rights of rocks are inalienable. You cannot alienate the right from the rock. Period. You either have a rock with rights or you have neither.

That is the most important lesson you can ever learn about human rights.

A “right” is just a word for the legal authority you have over yourself. Now to get full value from the time you are spending reading this, go back three paragraphs and ponder their meaning in terms of your own rights to life and the things you are capable of doing. If that is not profound, read it over until it is.

So let’s see. Rocks have a right to their space, their home if you will. What other rights can we find for a rock? I guess they have a right to be heavy, don’t they? What if I decide I don’t like my rocks being heavy? Same problem. I can’t violate that right without violating the rock. That’s what inalienable means.

That is the most important lesson you can ever learn about human rights. Well, at least about natural human rights. Yes, I said it again. I want that to sink deep into your heart and soul because the very essence of your life is your authority over it.

Natural Rights and Unnatural Rights

Hang on, we’re just getting started here. We’ve been talking about natural rights, the stuff that Jefferson and his brethren used as the foundation of the freedom in which this nation became, and still remains today, the most sought out place in the world to acquire property rights. I don’t mean just real estate; I mean a place where a person can use his rights to choose a place to be, to live, and to move and do according to his own will.

The founding fathers got their ideas about natural rights mostly from John Locke and considered him a master philosopher on the subject of natural rights. Dave Benner recently posted a historical summary about this. Among other things, he said:

Out of the social compact [government] theorists, Locke had by far the most influence on the founding generation in the American states. Historian Clinton Rossiter wrote that “Locke rode into New England on the backs of Moses and the Prophets.” Patriot lawyer James Otis wrote that “the authority of Mr. Locke has been preferred to all others.” Benjamin Franklin said that Locke was one of the “best English authors” in the fields of history, rhetoric, logic, moral and natural philosophy. Richard Henry Lee went as far as to describe the Declaration of Independence as a copy of Locke’s work. Thomas Jefferson called Locke one of the three greatest men that ever lived.

The Rights of the Big Rocks

Now some of my readers will complain that attributing rights and authority to inanimate objects is just strange. That’s OK, there’s enough space between words and their meanings for all of us. But think about this: when you jump off my roof that big rock we call earth takes over and exerts its power over you. Can you do anything about that? Power, authority, rights – all the same thing. Let’s call a spade a spade and see what we can learn from that.

Turns out that big rocks not only have their own natural rights, they have rights that supersede other rights. I’m talking about astronomy now. If you jump off my roof, you’ll be sorry. It’s too high and when you put yourself wholly under the authority of gravity you will lose some of your rights, at least for a moment. Of course, that’s nothing compared to the authority gravity has throughout our universe. It has the authority and it does its job. We had to work hard to put a man on the moon. So we exercised our rights and overcame those astronomical rights. But we can never destroy them. And that’s the point.

Legitimate Authority Creates Order

What we can see here is that the physical universe has order, and that order is maintained by various authorities vested in its various parts. If that is true, then the authority of a human being, his rights to be and to do, is just as real, and just as compelling as any other object in the universe. This is not rocket science, just simple fact.

There’s another insight here: These authorities we often call the laws of nature, are legitimate for at least two reasons. That’s because they are applied equally to all creatures in both space and time. We all live in the same fields of light and gravity, for example, and we have confidence on them being the same day after day. Confidence in the future is king, and crucial for the progress of individuals and nations.1

Here’s another insight about legitimate authority: A contract is a way of creating and assuring order. In a contract, we use our freedom (rights) to restrict that freedom in certain ways. By that restriction, we establish an area of freedom, focus capabilities and control the future. Marriage is one of the most powerful and enabling contracts we can enter into. It is an opportunity to create something that is greater than the sum of its parts. It’s one of life’s dilemmas that we can create freedom (which is composed of rights) by voluntarily restricting our freedom.

Another example: if you want to go to the moon, you make a contract under which you will be completely confined in your seat and put yourself totally at the mercy of the rocket system. It’s a trade-off of rights for rights.

So the rights of rocks are real, natural, inalienable, and immutable. There really is no way to avoid this conclusion. At least, not without throwing this discussion into a semantic tizzy.

Now, about those “unnatural” rights. If we turn this whole thing over and look at the back side — maybe when we talk about rights granted by legislation we should call them “unnatural rights” so we don’t forget where real rights come from. Maybe when we pursue goals like “social justice” we should think carefully about what effect those legislatively granted, unnatural rights or authority will have upon the inalienable, immutable, natural rights of citizens.

What This All Means

It means that natural rights are hardly something we can debate. Discuss, of course, but like gravity, they are just there. Since natural rights are untouchable, we may wonder, and rightly so, whether there are any other “real” rights. We sometimes think about rights that can be traced to legislation. But are those real rights or are they manufactured rights?

What would happen if the rights, authorities, powers (whatever you want to call them) of the heavenly bodies were terminated? Horrific to say the least. And then what happens when human rights are wholly violated? Same. Furthermore, what would happen if a star the size of our sun should join our solar system? Chaos. And then what happens when a legislature grants rights to one class of citizens and excludes the rest of the people? Surely there is something we can learn here.

Most of all, we learn from rocks that our human capacities, powers, bodies, and spaces define our natural, inalienable, and immutable rights and that these cannot be infringed without making us something less than we really are.

NOTES

1There is a powerful, confirming parallel here. Under the confederacy, there was considerable chaos in and among the colonies. The transformation under the new constitution was remarkable in both time and space. It took only a few years for confidence to reign. A dramatic prosperity broke out across the entire new nation.

]]>SWIFT and the Weaponization of the U.S. Dollarhttps://tenthamendmentcenter.com/2018/10/12/swift-and-the-weaponization-of-the-u-s-dollar/ Fri, 12 Oct 2018 16:07:39 +0000http://tenthamendmentcenter.com/?p=27635The U.S. doesn't only project power across the globe through its massive military. It also weaponizes the U.S. dollar, using its economic dominance as both a carrot and a stick.]]>

The Trump administration dropped 44,000 bombs in its first year – a faster bombing pace than Pres. Obama, who bombed more than Pres. Bush. America has intervened militarily in other countries for decades, against the council of founders like George Washington who advised America should “observe good faith and justice towards all nations; cultivate peace and harmony with all.”

But the U.S. doesn’t only project power across the globe through its massive military. It also weaponizes the U.S. dollar, using its economic dominance as both a carrot and a stick.

The U.S. government showers billions of dollars in foreign aid to “friends.” On the other hand, “enemies” can find themselves locked out of the global financial system that the U.S. effectively controls using the dollar.

How exactly does the United State weaponize the dollar?

It utilizes the international payment system known as SWIFT.

SWIFT stands for the Society for Worldwide Interbank Financial Telecommunication. The system enables financial institutions to send and receive information about financial transactions in a secure, standardized environment. Since the dollar serves as the world reserve currency, SWIFT facilitates the international dollar system.

SWIFT and dollar dominance give the U.S. a great deal of leverage over other countries.

The U.S. has used the system as a stick before. In 2014 and 2015, it blocked several Russian banks from SWIFT as relations between the two countries deteriorated. More recently, the US threatened to lock China out of the dollar system if it failed to follow U.N. sanctions on North Korea. Treasury Secretary Steven Mnuchin threatened this economic nuclear option during a conference broadcast on CNBC.

“If China doesn’t follow these sanctions, we will put additional sanctions on them and prevent them from accessing the U.S. and international dollar system, and that’s quite meaningful.”

A number of countries including China, Russia and Iran have taken steps to limit their dependence on the dollar and have even been working to establish alternative payment systems. A growing number of central banks have been buying gold as a way to diversify their holdings away from the greenback. It comes as no surprise that countries on shaky ground with the U.S. would take such measures, but even traditional U.S. allies have grown weary of American economic bullying.

On Sept. 24, the EU announced it will create a special payment channel to circumvent U.S. economic sanctions and facilitate trade with Iran. EU foreign policy chief Federica Mogherini made the announcement after a meeting with foreign ministers from Britain, France, Germany, Russia, China and Iran. She said the new payment channel would allow companies to preserve oil and other business deals with Iran.

In practical terms this will mean that EU member states will set up a legal entity to facilitate legitimate financial transactions with Iran and this will allow European companies to continue to trade with Iran in accordance with European Union law and could be open to other partners in the world.”

The plan comes in response to Donald Trump’s decision to withdraw from the Iran nuclear deal. The EU, Russia and China, released a joint statement, saying the “Special Purpose Vehicle” will “assist and reassure economic operators pursuing legitimate business with Iran.” The statement also said the signatories to the Iran deal “reconfirmed their commitment to its full and effective implementation in good faith and in a constructive atmosphere.”

If the Italians want to buy some Iranian oil, they will wire the money to this entity which will then handle the financial transactions from there and vice versa. There will be no involvement of commercial banks and central banks, both of whom are terrified at the prospect of US retribution if they are seen to be going against US sanctions.”

Lowry Institute for International Policy research fellow Rodger Shanahan called the plan “a poke in the eye for the US.”

America’s undeclared wars have cost trillions of dollars. Economic warfare could come at a similar price. De-dollarization of the world economy would likely perpetuate a currency crisis in the United States. And it appears a movement to dethrone the dollar is gaining steam. This is yet another consequence of the U.S. government abandoning the Constitutional requirement for sound money. The Federal Reserve perpetuates the system with its money-printing and interventionist monetary policy.

As James Madison said, “Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other.” War always comes at a steep cost – whether military or economic.

]]>What if the President and the Senate Just Pulled a Fast One?https://tenthamendmentcenter.com/2018/10/11/what-if-the-president-and-the-senate-just-pulled-a-fast-one/ Thu, 11 Oct 2018 18:46:21 +0000http://tenthamendmentcenter.com/?p=27678What if the whole purpose of an independent judiciary is to be anti-democratic? What if its job is to disregard politics? What if its duty is to preserve the liberties of the minority — even a minority of one — from the tyranny of the majority? What if that tyranny can come from unjust laws […]]]>

What if the whole purpose of an independent judiciary is to be anti-democratic? What if its job is to disregard politics? What if its duty is to preserve the liberties of the minority — even a minority of one — from the tyranny of the majority? What if that tyranny can come from unjust laws or a just law’s unjust enforcement?

What if we have a right to insist that judges be neutral and open-minded rather than partisan and predisposed to a particular ideology? What if presidential candidates promise to nominate judges and justices who they believe will embrace certain ideologies?

What if history shows that Supreme Court justices appointed by Democratic presidents typically stay faithful to their pre-judicial ideologies? What if history shows that justices appointed by Republican presidents tend to migrate leftward, toward the middle of the ideological spectrum? What if some Republican-appointed justices — such as Sandra Day O’Connor, Anthony M. Kennedy and David Souter — migrated across the ideological spectrum so far that they became pillars of the high court’s abortion jurisprudence even though the presidents who appointed them publicly expected the opposite?

What if the real business of judging is interpreting words in the Constitution and federal statutes? What if there is no ideologically neutral way to do that?

What if one theory of constitutional interpretation — espoused by people who say we have a “living Constitution” — informs that the words written decades or centuries ago should be interpreted and understood in accordance with their ordinary meaning today? What if this theory lets judges decide what those words mean today?

What if the opposite theory of constitutional interpretation — called “originalism” — informs that the meanings of words in the Constitution and federal statutes were permanently fixed at the time of their enactment? What if this theory binds judges to well-grounded historical meanings of words and the values they express? What if there is no reconciliation between these two theories of constitutional interpretation? What if judges and justices must choose one or the other or variants of each?

What if the Constitution proclaims itself to be the supreme law of the land? What if that means that all laws and presidential prerogatives that are contrary to the Constitution are unconstitutional and the courts before which those laws and prerogatives are challenged have a duty to declare them unconstitutional?

What if judges and justices — when confronted with laws they like that are clearly unconstitutional — often find creative ways to uphold those laws? What if that is not what judges and justices are supposed to do but they do it anyway?

What if the Fourth Amendment to the Constitution prohibits searches and seizures by the government without a search warrant issued by a judge and based on probable cause of a crime? What if that amendment also requires that all search warrants issued by judges specifically describe the place to be searched and the person or thing to be seized?

What if the Supreme Court has consistently held that surveillance constitutes a search under the Fourth Amendment? What if the British practice of spying on colonists was one of the forces that animated the Fourth Amendment?

What if the Foreign Intelligence Surveillance Act of 1978, the Patriot Act and their various amendments authorize federal courts to issue warrants that are not based on probable cause of a crime and authorize warrantless surveillance for intelligence-gathering purposes? What if the George W. Bush, Barack Obama and Donald Trump administrations have taken the extreme position that these laws permit warrantless surveillance on everyone in America, even those who are not suspected of wrongdoing?

What if this warrantless surveillance has subjected every person in America to the loss of rights protected by the Fourth Amendment? What if the Supreme Court has characterized the principle of those rights as being among the highest-protected by civilized society — namely, the right to be left alone?

What if a young lawyer who helped to write the Patriot Act in 2001 and its amendments in 2005 and who advised President Bush that he could spy on all people all the time was rewarded for that work with a lifetime appointment to the federal appeals court in Washington, D.C.?

What if this same lawyer, by now a federal appellate judge, was confronted with a case in which the feds had spied on Americans in blatant violation of the Fourth Amendment? What if this judge was publicly committed to originalism — which informs that the Fourth Amendment prohibits allwarrantless surveillance of people in America, no matter its purpose?

What if this judge employed linguistic acrobatics in ruling on this conflict between domestic warrantless surveillance — which he advised a former president was constitutional — and the original meaning of the Fourth Amendment, which he knew bars government spying without warrants?

What if this judge — claiming a loyalty to originalism but nevertheless embracing its opposite, the concept of a “living Constitution” — ruled that the feds can spy without warrants on anyone at any time, as long as they do so for intelligence-gathering and not law enforcement purposes? What if this intelligence-gathering exception to the Fourth Amendment exists only in this judge’s mind and not in the Fourth Amendment itself? What if the Patriot Act permits the sharing of intelligence data with law enforcement? What if in this judge’s mind, every bit of data on your mobile device or computer — financial, legal, medical, personal, professional, intimate — is available for government surveillance on a whim and without a search warrant?

What if that judge just joined the Supreme Court? What if his perverse views of privacy and the Fourth Amendment were never discussed at his confirmation hearings but his adolescent drinking habits and sexual proclivities were? What if it is too late to preserve, protect and defend the Constitution? What do we do about it?

The National Endowment for the Arts (NEA) “is an independent federal agency that funds, promotes, and strengthens the creative capacity of our communities by providing all Americans with diverse opportunities for arts participation.” The NEA “works with other federal agencies, state and local governments, state and regional arts agencies, and private nonprofits on national initiatives.” NEA funding “is project-based and goes to thousands of nonprofits each year, along with partnerships and special arts initiatives, research and other support that contribute to the vitality of our neighborhoods, students and schools, workplace and culture.” In fiscal year 2016, “the NEA recommended more than 2,400 grants in nearly 16,000 communities in every Congressional District in the country.” Its budget for fiscal year 2017 (which ended on Sept. 30, 2018) was about $153 million.

Although the NEA was established in 1965, most Americans probably never heard of the agency until the late 1980s when it was revealed that it had funded blasphemous and pornographic art like the photograph “Piss Christ” by Andres Serrano that depicted a small plastic crucifix submerged in a glass tank of the artist’s urine and the self-portrait photograph of Robert Mapplethorpe with a bullwhip inserted in his anus.

I recently came across an article written in 1997 by a conservative and published by the Heritage Foundation, a conservative think tank. In “Ten Good Reasons to Eliminate Funding for the National Endowment for the Arts,” Laurence Jarvik gave ten reasons to eliminate funding for the National Endowment for Arts:

Reason #1: The Arts Will Have More Than Enough Support without the NEA

Reason #2: The NEA Is Welfare for Cultural Elitists

Reason #3: The NEA Discourages Charitable Gifts to the Arts

Reason #4: The NEA Lowers the Quality of American Art

Reason #5: The NEA Will Continue to Fund Pornography

Reason #6: The NEA Promotes Politically Correct Art

Reason #7: The NEA Wastes Resources

Reason #8: The NEA Is Beyond Reform

Reason #9: Abolishing the NEA Will Prove to the American Public that Congress Is Willing to Eliminate Wasteful Spending

Reason #10: Funding the NEA Disturbs the U.S. Tradition of Limited Government

Although these things are all true, and although Jarvik nicely supported each reason with relevant facts and figures, they are not good reasons to eliminate funding for the NEA.

Jarvik’s ten reasons inadvertently reveal what is wrong with conservatives.

Suppose the arts would not have enough support without the NEA. Suppose the NEA did not just benefit cultural elitists. Suppose the NEA did not discourage charitable gifts to the arts. Suppose the NEA did not lower the quality of art. Suppose the NEA did not fund pornography. Suppose the NEA did not promote politically correct art. Suppose the NEA did not waste resources.

Suppose the NEA was not beyond reform. Suppose abolishing the NEA would not prove that Congress is willing to eliminate wasteful spending. Suppose funding the NEA did not disturb the U.S. tradition of limited government.

Then would it be okay for the federal government to fund the NEA?

Of course it wouldn’t.

What conservatives lack when it comes to the question of government funding of the NEA is any philosophical objections to unconstitutional federal agencies, illegitimate purposes of government, and income-transfer programs. And the same thing is true today. Why else do you think we have a federal budget of over $4 trillion with Republican control of both Houses of Congress and a Republican sitting in the White House?

The attitude of conservatives toward agencies like the NEA is the same as their attitude toward medical grants by the National Institutes of Health (NIH) and programming by NPR. It is only when the NIH doles out money for outrageous things and NPR blatantly promotes liberal causes that conservatives generally get upset. They are otherwise content that these agencies exist.

Here are some good reasons to eliminate funding for the National Endowment for the Arts:

Reason#1: The Constitution nowhere authorizes the federal government to operate an endowment for the arts.

Reason#2: The Constitution nowhere authorizes the federal government to fund the arts.

Reason#3: The Constitution nowhere authorizes the federal government to give welfare to any individual or group for any reason.

Reason#4: All funding for the arts should be private and voluntary because all charity should be private and voluntary.

Reason#5: The government has no business taking money from some Americans and giving it to other Americans—for any reason.

Reason#6: The government should not subsidize the arts because it should not subsidize anything.

Reason#7: It is not the purpose of government to do anything that can be done by the free market.

Reason#8: All government programs should be abolished, not reformed.

Reason#9: If artists can’t sell their work on the free market, then they should change careers.

Reason#10: The NEA should be abolished immediately, all of its grants canceled, and all of its employees laid off.

Why don’t we ever hear reasons like these from conservatives? I thought they believed in the Constitution and limited government?

Although, like last year, President Trump proposed in his budget to drastically cut the NEA’s funding for the next fiscal year, Republicans in Congress are on course, again, to increase the agency’s funding.

The Interior, Environment, Financial Services and General Government, Agriculture, Rural Development, Food and Drug Administration, and Transportation, Housing and Urban Development Appropriations Act, 2019 (H.R.6147) would fund the NEA in fiscal 2019 along with a host of other unconstitutional government agencies. The bill passed the House by a vote of 217-199. All of the Democrats and only 15 Republicans voted against it. The bill, amended, passed the Senate by a vote of 92-6. Only 6 Republicans voted against it. And yet, every Republican in Congress runs on a platform of how conservative he is.

Conservatives haven’t changed. The only limited government they desire is a government limited to control by conservatives.

]]>Merrick Garland and Brett Kavanaugh: Two Peas in a Pod?https://tenthamendmentcenter.com/2018/10/09/merrick-garland-and-brett-kavanaugh-two-peas-in-a-pod/ Tue, 09 Oct 2018 18:04:52 +0000http://tenthamendmentcenter.com/?p=27667Merrick Garland and Brett Kavanaugh voted together 93 percent of the time while they were colleagues on the appeals court.]]>

Many conservatives cheered Judge Brett Kavanaugh’s confirmation to the Supreme Court, convinced his presence will turn the tide toward liberty.

For the first time in decades, “conservatives” hold a firm majority of SCOTUS seats. We’re told the newly configured court will stop the steady leftward creep of constitutional law. It will reverse past unconstitutional decisions. And it will move the country back toward the limited government vision of the founding generation.

But will it really? Can we really count on a politically connected lawyer appointed to a federal court to rein in the overreaching federal government just because he’s supposedly a “conservative Republican?

If history serves as an indicator, not likely.

Keep in mind it was Republican appointee John Roberts who told us the federal takeover of health care known as Obamacare was constitutional. And the majority of the justices who gave us Roe v. Wade were Republican appointees.

So, how different is he, really? As it turns out, not very. About 7 percent to be exact.

Brett Kavanaugh served on the U.S. Circuit Court of Appeals for the District of Columbia together with Obama SCOTUS appointee Merrick Garland. Remember him? He was the “liberal” judge Republicans blocked from confirmation. Well, Garland and Kavanaugh voted together 93 percent of the time while they were colleagues on the appeals court.

Sen. Ted Cruz brought up this fact during Kavanaugh’s confirmation hearing. According to the senator, Judge Garland joined 27 out of 28 opinions written by Judge Kavanaugh, while Judge Kavanaugh joined 28 out of 30 of Judge Garland’s opinions.

When asked about this during the hearings, Kavanaugh said it was because both he and Garland approach the law as written without interjecting their own personal preferences.

“I think we are trying hard to find common ground and as I’ve said before, he is a great judge,” Kavanaugh said. “Those statistics reflect the reality of how judges go about their business.”

In other words, they go about their business agreeing with each other most of the time. This should come as no surprise. They go to the same law schools. They travel in the same social circles. They hold the same fundamental beliefs about the Constitution and law. Sure. The liberals and conservatives are different. About 7 percent different.

And we’re supposed to depend on this guy to “save the republic?”

Unlikely.

Constitutional law has very little to do with the Constitution. Precedent primarily drives legal decisions in federal courts, not the Constitution as ratified. Once an unconstitutional concept becomes enshrined in legal jurisprudence, it lives there forever. “Constitutional conservatives” almost always defer to the precedent, not the original understanding of the Constitution. Just consider Justice Anton Scalia’s acceptance of the incorporation doctrine despite his misgivings about “substantive due process” as an original matter.

“I have acquiesced in the Court’s incorporation of certain guarantees in the Bill of Rights because it is ‘long established and narrowly limited.”

That’s what federal judges do. They acquiesce. They follow precedent. Even bad precedent. This explains why the vast majority of constitutional law is totally unconstitutional. It’s also why I have no faith a new Supreme Court justice will “fix” anything, much less “return us to the Constitution.” The truth is the even “the best” Supreme Court judges constantly get things wrong because they embrace the opinions of past judges who drastically expanded federal power through bastardizations of the commerce clause, the general welfare clause, the necessary and proper clause, and many other constitutional provisions.

And Kavanaugh ranks far behind “the best.”

Now, he might turn out to be good on some things. And sure, he will probably do better than whomever Hillary would have nominated – at least 7 percent better. But when it comes to executive power, the Fourth Amendment and war powers, we know Kavanaugh is awful. As just one example, he was intimately involved in the passage of the Patriot Act. He called it a “measured, careful, responsible, and constitutional approach…”

This magnifies the absurdity of thinking the Supreme Court will ever “get us back to the Constitution.” You’re foolish to think a branch of the federal government will ever limit the federal government. At best, the Kavanaugh court will maintain the unconstitutional status quo. And more likely, it will continue to get worse and expand federal power. After all, there is only a 7 percent difference between the conservative and the liberal. That’s not much to bank on.

Last week the United States, Mexico, and Canada agreed to replace the North American Free Trade Agreement (NAFTA) with a new United States-Mexico-Canada Agreement (USMCA). Sadly, instead of replacing NAFTA’s managed trade with true free trade, the new USMCA expands government’s control over trade.

For example, under the USMCA’s “rules of origin,” at least 75 percent of a car’s parts must be from the US, Canada, or Mexico in order to avoid tariffs. This is protectionism designed to raise prices of cars using materials from outside North America.

The USMCA also requires that 40 to 45 percent of an automobile’s content be made by workers earning at least 16 dollars per hour. Like all government-set wages, this requirement will increase prices and decrease employment.

The USMCA also requires Mexico to pass legislation recognizing the “right of collective bargaining.” In other words, this so-called free trade agreement forces Mexico to import US-style compulsory unionism. If the Mexican legislature does not comply, the US and Canada will impose tariffs on Mexican goods.

The USMCA also requires the three countries to abide by the International Labour Organization (ILO) standards for worker rights. So, if, for example, the bureaucrats at the ILO declared that Right to Work laws violate “international labor standards”’ because they weaken collective bargaining and give Right to Work states an unfair advantage over compulsory unionism states and countries, the federal government may have to nullify all state Right to Work laws.

The USMCA also obligates the three countries to work together to improve air quality. This sounds harmless but could be used as a backdoor way to impose costly new regulations and taxes, such as a cap-and-trade scheme, on America.

This agreement also forbids the use of currency devaluation as a means of attempting to gain a competitive advantage in international trade. Enforcement of this provision will be difficult if not impossible, as no central bank will ever admit it is devaluing currency to obtain a competitive advantage in international trade. Of course, given that the very act of creating money lowers its value, the only way to stop central banks from devaluing currency is to put them out of business. Sadly, I don’t think the drafters of the USMCA seek to restore free-market money.

The currency provision will likely be used to justify coordination of monetary policy between the Federal Reserve and the Mexican and Canadian central banks. This will lead to region-wide inflation and a global currency war as the US pressures Mexico and Canada to help the Fed counter other countries’ alleged currency manipulation and challenges to the dollar’s reserve currency status.

A true free trade deal would simply reduce or eliminate tariffs and other trade barriers. It would not dictate wages and labor standards, or require inter-governmental cooperation on environmental standards and monetary policy. A true free trade deal also would not, as the USMCA does, list acceptable names for types of cheeses.

Those of us who support real free trade must not let supporters of the USMCA get away with claiming the USMCA has anything to do with free trade. We must also fight the forces of protectionism that are threatening to start a destructive trade war. Also, we must work to stop the government from trying to control our economic activities through regulations, taxes, and (most importantly) control of the currency through central banking and legal tender laws.

]]>When “Good” Is the Enemy of the Constitutionhttps://tenthamendmentcenter.com/2018/10/07/when-good-is-the-enemy-of-the-constitution/ Sun, 07 Oct 2018 17:49:09 +0000http://tenthamendmentcenter.com/?p=27585Perfect might be the enemy of good, but some people's definition of "good" is an enemy to the Constitution.]]>

I’ve been hard on Donald Trump — just like I was hard on Barack Obama — just like I will be hard on the next occupant of the Oval Office.

This has gotten me into hot water with Trump supporters.

I recently wrote an article highlighting the fact that the Trump administration managed to set a spending record in August. The federal government spent over $433 billion in that single month. No administration has ever spent more in one month — not even Pres. Obama.

Now, Republicans brand themselves as the party of fiscal responsibility and “limited government.” Spending $433 billion in a single month counts as neither fiscally responsible nor limited. But instead of upholding their principles and holding their president accountable, some Trump supporters turned their ire toward me for pointing this out. According to some, calling out this discrepancy between principles and actions makes me a “libtard.”

Sadly, this happens a lot. Every time I mention Trump’s latest unconstitutional action, Trump supporters berate me with similar epithets. Most of these comments simply represent a mindless devotion to party platitudes and a cult of personality, but every once in a while, somebody will advance an actual argument.

For instance, one guy insisted I should quit criticizing the president because “perfect is the enemy of good.”

I think the problem here is this guy and I have vastly different definitions of “good.” I define “good” as following the Constitution every issue, every time, no exceptions, no excuses. It seems he defines “good” as implementing some policies he happens to like.

Now, this guy claims Trump is “moving the country in the right direction.” He bases this assessment on tax cuts and a booming economy. And I guess if that’s your standard, you can make the case. (Although as I point out in my podcast, tax reform without government reform isn’t going to help the economy in the long-run.) But if your standard is the Constitution, Trump has done absolutely nothing to “move the country in the right direction.” He and his Republican cohorts in Congress have continued trampling on America’s founding principles, just like the succession of presidents before.

The bottom line is that from a constitutional standpoint, the Trump administration and current GOP Congress have been every bit as bad as Obama and his Democratic cohorts. Seriously, when was the last time you heard Trump say, “I’m doing X because the Constitution demands it!’ or, “I’m not doing Y because the Constitution doesn’t delegate that power to the federal government!”?

I’m going with never.

I’ve never heard the president utter such a thing.

So, I’m supposed to support the Republican because while they may not be perfect, they are better than the Democrats, so I’m told. And perfect is the enemy of good.”

“Any last vestiges of hope in the Republican Party have been shattered by the current regime, wherein a Republican President, Republican House, Republican Senate and Republican-nominated Supreme Court have demonstrated that they have zero interest in the timeless vision of America’s founders. Supporting them in the hopes that they will revive American liberties is akin to hoping that shock paddles will suffice to revive a month-old corpse.”

Look, I’m not going to stop demanding perfection when it comes to the Constitution. That’s the standard. But my stubborn refusal to abandon principle isn’t the problem here. It’s not like I’m not getting “good” from the Republicans. I’m not even getting average. I’m getting downright terrible.

You might like some Trump policies. You might enjoy the fact that he talks tough and isn’t politically correct. You may appreciate his tax cuts. You may love that he’s putting China “in its place’ with the trade war. You may like the increased defense spending and think he’s made good Supreme Court picks. But none of this has anything to do with the Constitution. This is mere policy preferences. We can debate whether these policies are good or bad, but they have nothing to do with following the Constitution.

Perfect might be the enemy of good, but some people’s definition of “good” is an enemy to the Constitution.

Even before Trump was elected it was already clear that no one should expect him to cut spending and rein in annual budget deficits. Trump has always been about buying votes with more and more spending.

With the end of fiscal year 2018, and with Trump’s support for a historically large spending hike for defense-related departments, we’re getting a sense of Trump’s fondness for spending as president. While true that, so far, Trump doesn’t represent a sizable departure from the spending trends of the previous administration, he nevertheless is confirming for us that budget cutting is not part of his agenda.

Moreover, the spending increases we’re seeing now are coming in a boom period. As the huge spending increase of 2009 has shown — spending that can be blamed on both Bush and Obama — we should expect big spending increases in times of recession.

2018: A Big Year for Government Spending

Fiscal year 2018 ended last month, and during that period, the US government added more than a trillion dollars to the national debt.

As of October 1, 2018, the first day of the 2019 fiscal year, the Federal government’s debt outstanding totaled $21,606,948,383,546.28. On year earlier, the total was $20,244,900,016,053.51.

At 21 trillion dollars, the US national debt is, of course, at the highest level it’s ever been.

Not surprisingly, given generally stable federal receipts, debt is being driven by federal spending which is continuing at a rapid pace.

In the 2018 fiscal year, the OMB estimates federal spending topped $4.17 trillion, which is an increase of 4.8 percent over fiscal year 2017. That’s the second-highest growth rate in the past five years, and the third highest in the past decade.

2018’s spending growth rate also was larger than the growth rate recorded for seven out of eight budgets signed by Democrat Bill Clinton. If the OMB’s estimates for 2019 turn out to be true, spending growth will hit a ten-year high of 5.6 percent in 2019.

None of the biggest spending programs — those that contribute the most to federal spending — have seen cuts. Last week, Trump signed into law a very large increase in defense spending. Moreover, the major departments for welfare programs continues to see increases. And while we’re likely to hear about how welfare programs are suffering “cuts” under the Trump administration, the truth is these departments are likely to see increases through the 2019 fiscal year. Neither Social Security nor the Health and Human Services department are facing cuts.

Moreover, rising debt levels appear to be of little concern to anyone in Washington. As Bloombergreported on Monday:

Trump is proving as indifferent to fiscal orthodoxy as to any other kind. The spending measure he signed on Friday, along with the one approved in March and December’s tax bill, amount to the biggest stimulus outside recessions since the 1960s. They sailed through a House led by the supposedly hawkish Paul Ryan, who’s due to step down in January without much progress on his goal of reining in so-called entitlements like social security — an illustration of how Republican deficit scolds are in retreat.

On the Democratic side, the reaction that’s firing up the grassroots isn’t “How could you do that?’’ It’s: “Why can’t we do that?’’

The seriousness of the situation is unlikely to come to the fore until recessionary pressures for more “stimulus” push spending to newly unprecedented levels, as happened in 2009. This in turn will lead to enormous deficits which will in turn require more borrowing. That may put upward pressure on interest rates. If that occurs, payments on the national debt will increase, eating up larger and larger parts of the federal budget. Only then — when sizable amounts of government funds must be moved out of welfare programs and military programs and into debt payments — will the seriousness of the debt become apparent.

]]>The Rubicon was Crossed Years Ago: Kavanaugh Hearing Proves the American Republic Is Deadhttps://tenthamendmentcenter.com/2018/10/03/the-rubicon-was-crossed-years-ago-kavanaugh-hearing-proves-the-american-republic-is-dead/ Wed, 03 Oct 2018 09:59:28 +0000http://tenthamendmentcenter.com/?p=27644The reality is that Kavanaugh’s understanding of the U.S. Constitution would have disqualified him from nomination by any president in the early years of the Republic, let alone permit him to survive a vote by the Senate.]]>

An ocean’s worth of digital ink has been spilled regarding the Senate committee hearing last week concerning allegations leveled against Supreme Court Justice nominee Brett Kavanaugh. There’s a lot that could be said about the accusations themselves and the ensuing media circus, and the social and cultural consequences down the road.

However, the most important takeaway is that the hearing contained all the elements of a dying Empire, or at the very least the thin pretense of a republic.

Most historians mark Julius Caesar’s rule as the official transformation of Rome from a republic to an empire. However, that transition did not occur overnight. Gradual changes in the form of government corruption and military adventures beyond the republic’s borders helped paved the way for Caesar when he finally crossed the Rubicon in defiance of the Roman Senate.

In the same way, the American Republic did not die overnight. It suffered from countless wounds through congressional overreach, the creation of invasive and unaccountable bureaucracies, and “ambitious” presidents meddling in foreign and domestic affairs. These acts have taken a devastating toll on the public’s generally-accepted understanding about the meaning of the U.S. Constitution and the role of the federal government.

Let’s not misunderstand the situation. The campaign leveled against Kavanaugh based on continually-changing claims is the most blatant, unabashed political hit job attempt in American history. It is self-evident to any honest individual that this is a desperate last-minute attempt to do whatever is possible to prevent or delay his appointment to the Supreme Court out of fear of how he may rule on certain cases.

But we need to step back and realize just how removed the situation is from what the nomination process is supposed to be about. Its purpose as intended by the Founders was for those in the U.S. Senate elected by their respective state legislators to ensure that the person appointed to help uphold the Constitution had a firm and accurate understanding of his duties and was well qualified for the role. Certainly personal character mattered, and had issues arose surrounding their integrity, the process would have examined them and determined if the nominee was unfit to hold such an important office.

The reality is that Kavanaugh’s understanding of the U.S. Constitution would have disqualified him from nomination by any president in the early years of the Republic, let alone permit him to survive a vote by the Senate. And if he had made it through, the process would have heavily revolved around his views on the Constitution, as it is meant to be.

If the American Republic were alive and well today, the debate over Kavanaugh’s confirmation would have concerned his views on the surveillance state, torture, and presidential war powers. They are hardly contested by anyone, because there is a bipartisan agreement that these unconstitutional stances are perfectly in keeping with prevailing thought. There is no dispute, because these concepts which are totally at odds with the ideals and values of the Founding Fathers are considered true and rightfully observed by both sides of the political establishment.

And this is how we know the American Empire is dying; not only is the committee tasked with determining the qualifications of a Supreme Court nominee blind to his ineligibility on those standards, but so is much of the American public.

The country is fighting over the content of his high school yearbook and beer-drinking as a teenager, rather than the content of his recent legal opinions. Eventually we will have a Supreme Court nominee who can openly support the idea that the president can kill U.S. citizens on U.S. soil via a drone strike at any time, and the only controversy to be discussed is whether a stick figure family he drew for a kindergarten finger-painting project perpetuates institutional misogyny.

To be sure, that is because one side decided to hijack the political process as part of an effort to change cultural and social norms, but the fact that this charade is taking place and has been allowed to continue speaks volumes about what is and isn’t up for debate anymore.

America is ignoring a candidate’s support for the very things that killed the Republic because the fight over those issues has long been settled.

As it stands, there is no good outcome for liberty lovers in this situation. If he is confirmed, Kavanaugh will perpetuate many of the worst the apparatuses of the federal government we heartily oppose. But if he is not confirmed, it will not be because of his legal record, and any nominee that replaces him will hold the same views.

For all his faults, Kavanaugh’s warnings during his testimony about the damage done to the nation as a result of this process are legitimate. Whether the Senate confirms him or not, the consequences will be felt for years.

However, it might have been avoided if Americans, their elected officials, and judges such as Kavanaugh had been as concerned about avoiding similar damage to our Constitution.

]]>Hopes of Using 25th Amendment Against Trump are Delusionalhttps://tenthamendmentcenter.com/2018/10/01/hopes-of-using-25th-amendment-against-trump-are-delusional/ Mon, 01 Oct 2018 12:18:50 +0000http://tenthamendmentcenter.com/?p=27641Elizabeth Warren's idea is as delusional as Trump-haters claim he is.]]>

The 25th Amendment outlines the procedure to be followed if the president is incapacitated. The procedure is laid out in stages, and every stage gives the president the benefit of the doubt. A president with a minimal ability to respond can probably defeat any effort to remove him from power. If he has support from a significant minority in even one congressional chamber he certainly can defeat any such effort.

Step #1 in the process enables the vice president and a majority of the Cabinet, “or of such other body as Congress may by law provide” to send Congress a “written declaration that the president is unable to discharge the powers and duties of his office.” If they do so the vice president assumes the president’s duties and becomes acting president.

Congress has never provided for any “other body” to act, so the decision is made by the vice president and the president’s Cabinet. No action is possible unless the vice president agrees. If he does agree, then at least eight members of the 15-person Cabinet must sign on.

Of course, the president selected the vice president as his running mate and the president nominated all Cabinet officers. So people who owe their offices to the president must certify that he cannot function; it is not enough to allege he is erratic, dictatorial, or misguided. And they must present their statement in public. Anonymous hit pieces in the New York Times don’t count.

Could Congress pass a law that defines more carefully what “unable to discharge” means? Yes, but the courts probably wouldn’t recognize it. When the Constitution grants specialized powers to named assemblies (such as when Congress, a state legislature, or a convention acts in the constitutional amendment process), the courts generally hold that statutes can’t regulate their decisions. (The Constitution’s Necessary and Proper Clause doesn’t cover the situation either, because the decision-making group is not “the Government,” a “Department,” or an “Officer.”)

Suppose the vice president and a Cabinet majority nevertheless decide to issue an “unable to discharge” statement. Step #2 gives the president a way to protect himself. He can send to Congress “his written declaration that no inability exists.” Once he does so he automatically re-takes power. Thus, Step # 2 gives the president a way to immediately countermand what the vice president and Cabinet have done. If they wish to persevere, they must immediately proceed to Step #3: They must send to Congress, within four days, another declaration insisting the president cannot discharge the powers and duties of his office.

If the vice president and Cabinet delay more than four days, the process is over and the president has won. Even if they otherwise could act within four days, it will take the president a good deal less than that to fire every Cabinet member who voted against him. In that case, they won’t have the qualifications as “principal officers” needed to vote against him a second time.

Suppose, though, that they anticipate such a response, and in the short interval between the president’s response to Congress and their dismissal, they manage to transmit a second “unable to discharge” message to Congress. This gets us to step #4.

Now Congress decides the issue. However, the decision-making process is, once again, heavily stacked in favor of the president. To remove the president from power, Congress must assemble within 48 hours (if not already in session), and there must be a two thirds vote for removal in each chamber within about three weeks.

This procedure is much tougher than impeachment-and-removal. Impeachment requires only a majority of the House, and there are no constitutional time limits. Under the 25th Amendment, however, if a minority in either single chamber can stall proceedings for about three weeks the president wins.

So Trump-haters who can’t wait till the next election should fix their hopes on impeachment, not on the 25th Amendment. For impeachment, though, you need a proven crime or a real breach of fiduciary duty. Here again, blind hatred and unproved allegations don’t count.

]]>The McDonald Case Was an Originalism Failurehttps://tenthamendmentcenter.com/2018/09/29/the-mcdonald-case-was-an-originalism-failure/ Sat, 29 Sep 2018 14:28:51 +0000http://tenthamendmentcenter.com/?p=27628While held up as a champion of the Constitution, Scalia's opinion in this case was nothing of the sort.]]>

Perhaps the most significant and long-lasting legacy of Donald Trump’s presidency will be his appointments to the United States Supreme Court. Supporters of candidate Trump expressed excitement over the opportunity for a Republican President to appoint a jurist who will be an originalist along the lines of the late Justice Antonin Scalia.

Justice Scalia has been touted as a “textualist” when it comes to interpreting the Constitution, meaning, he looked to the “plain words” of the document when determining what it means. However, as I pointed out in another article, his opinion in District of Columbia v. Heller, Scalia shows how textualism can result in an improper interpretation of the Constitution.

In Heller, Scalia properly held that the District of Columbia’s restrictive firearms laws were unconstitutional. However, his “textual” analysis went astray when he decided to explain exactly what the Second Amendment meant; in so doing, he actually ignored the text of the amendment and concluded that its “protections” by implication were limited to handguns, due to their popularity and ease of use for self-defense. His explanation of what “shall not be infringed” resulted in the phrase only protecting a limited category of firearms, leaving the door open for others to be infringed upon.

Two years later, in 2010, firearms laws once again found their way to the United States Supreme Court in the case McDonald v. City of Chicago, (561 U. S. 742). This time, however, city laws were the source of the controversy as opposed to the federal government, or the District of Columbia, acting under federal authority.

At issue in McDonald were laws passed by the city of Chicago and a suburb called Oak Park which effectively banned handgun possession by private citizens. Petitioners sued in federal court, seeking a declaration that the ban, along with other related ordinances, rendered them vulnerable to criminals. They asserted that the ban and related city ordinances were in violation of the Second and Fourteenth Amendments.

The district court upheld the constitutionality of the ban, noting that Heller had refrained from issuing any opinion as to whether the prohibitions in the Second Amendment applied to the states and asserting the court had the duty to follow precedent. For the Supreme Court to hold these local laws unconstitutional, the justices had to find a way to “incorporate” the Second Amendment to the states. This would essentially grant a federal veto over state laws, a proposition rejected outright during the Philadelphia Convention.

In our article on national concealed carry reciprocity, Carl Jones and I discussed how a proposed bill, popular among firearms enthusiasts, was in direct contravention to the Constitution as ratified. We explained that in order to understand the meaning of the Second Amendment, one must consider the context with which it was adopted. Likewise, one must also grasp the broader intent of the Constitution, which simply instituted a union of sovereign republics and created a “general” government to which specific enumerated powers were delegated.

The Second Amendment was intended to eliminate the need for standing armies by keeping “the militia,” meaning “every able-bodied person,” under the auspices of the individual states. The founding generation feared standing armies, as they led to war and the centralization of power in government. James Madison wrote, “of all the enemies to public liberty war is, perhaps, the most to be dreaded…because it comprises and develops the germ of every other.” He further explained that “War is the parent of armies; from these proceed debts and taxes,” and that “armies, and debts and taxes are the known instruments for bringing the many under the domination of the few.”

St. George Tucker wrote the very first comprehensive legal commentary on the Constitution. He was very clear when he stated that “The congress of the United States possesses no power to regulate, or interfere with the domestic concerns, or police of any state: it belongs not to them to establish any rules respecting the rights of property; nor will the constitution permit the prohibition of arms to the people.”

The legislative powers of Congress are set forth in Article I, with the enumerated powers listed therein under Section 8. Other than the power to arm the militia, no mention of regulating firearms is listed. None whatsoever. And the Tenth Amendment asserts the following:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

This means that the states, having never delegated such power to the general government, reserved for themselves the exclusive power to regulate firearms. Because the Bill of Rights was never intended to apply to the states, there is no means by which, coming from an “originalist” perspective, the Court could overturn the laws at issue in McDonald. Yet that is precisely what the Court did. In his concurring opinion, Scalia shows that not only does his “textualist” approach fail (see Heller), but so does his “originalist” approach.

Scalia’s analysis as to what “rights” are covered in the Second Amendment is problematic, as I explained in the Heller article. In Heller, Scalia acknowledges that the right to keep and bear arms is a right predating the Constitution. The historical context of the Bill of Rights is clear: they do not confer rights upon individuals; they are restrictive in nature, and the restrictions fall upon the general government. The first eight amendments merely reiterate that there were areas considered “hands off” to the general government. Regulation of firearms was one of the policy areas over which the states retained authority. Applying the Bill of Rights to the States was properly understood as undermining State sovereignty.

The Fourteenth Amendment served two distinct purposes: to negate Dred Scott v. Stanford, 60 U. S. 393 (1857) and to constitutionalize the Civil Rights Act of 1866, conferring the basic rights of U. S. citizenship to newly freed slaves — nothing more. Yet, Justice Scalia begins his concurring opinion by acknowledging his misgivings about Substantive Due Process as an original matter. He says, “I have acquiesced in the Court’s incorporation of certain guarantees in the Bill of Rights because it is ‘long established and narrowly limited.’

Scalia criticizes Justice Stevens for failing to properly apply the “Palko Test” in his dissenting opinion. In Palko v. Connecticut, 302 U. S. 325 (1937), the Court, in determining whether to incorporate the Double Jeopardy Clause against the States, required only that “a fair and enlightened system of justice would be impossible without that right sought being incorporated, or requires in addition that the right be rooted in the ‘traditions and conscience of our people.’”

The “Palko Test” conflicts with the Constitution and the Fourteenth Amendment as they were understood when they were proposed and ratified. When he introduced the proposal for a Bill of Rights to Congress, James Madison wanted some of the provisions to be made applicable against the States, where he argued liberty would most likely be threatened. As it was when he proposed this idea during the drafting of the Constitution in Philadelphia, his proposal was rejected.

Madison didn’t get what he initially desired, but he understood the federal, as opposed to the national nature of the new government (Federalist #39), and in Federalist #45 he explained:

“The powers delegated by the proposed Constitution are few and defined. Those which are to remain in the state governments are numerous and indefinite…The powers reserved to the several states will…concern the lives, liberties and properties of the people and the internal order, improvement and prosperity of the state.”

The relevant part of the 14th Amendment states:

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The Bill of Rights was never understood to be applicable against the states, and there is no historical evidence to support 14th Amendment incorporation. Even nationalist John Marshall, in Barron v. Baltimore 32 U. S. 243 (1833), admitted such when he wrote that the first ten “amendments contain no expression indicating an intention to apply them to state governments. This court cannot so apply them.”

What changed?

In 1925, the Supreme Court “found” the authority to apply the Bill of Rights against the States in the Fourteenth Amendment. (Gitlow v. New York 268 U. S. 652) This application is problematic and not supported by history. When the 39th Congress proposed this amendment, “incorporation,” was not its intention. As I’ve mentioned, the purpose and intent of the Amendment were to constitutionalize the Civil Rights Act of 1866, thereby taking its provisions out of the hands of the legislature.

Senator Poland observed that the phrase “…no State shall…abridge the privilege and immunities of the United States” was not intended to secure anything beyond what was set forth in Article IV, section 2 – basic rights of citizenship for freed blacks.

In his book Original Intentions, M. E. Bradford explains that “even the patron saint of the Republican Radicals, Thaddeus Stevens of Pennsylvania indicates his agreement…that these measures ‘do not touch social or political rights.’”

So, how where did this notion of incorporation come from?

A senator mentioned the idea one time as the 14th Amendment was making its way through Congress.

In what scholar Raoul Berger described as “a caprice of fortune,” it fell to Senator William P. Howard (R-MI) to act as spokesman for the Joint Committee in explaining the Amendment. Howard, who was summoned to fill in for the suddenly ill Chairman William P. Fessenden, in addressing the Senate said that in addition to the privileges and immunities of Article IV, the amendment should also include the personal rights secured by the first eight amendments. Berger tells us that that was “the sum and substance of Howard’s contribution” to the issue of incorporation. Those who spoke after Howard made no mention of the Bill of Rights and repeated that the goal of the Amendment was to constitutionalize the Civil Rights Act. Howard later walked back this statement by assuring the Senate that the purpose of the Amendment was to secure basic rights of freemen, nothing more. Even if one were to accept the Senate’s acceptance of Howard’s statements, there was no mention of applying the Bill of Rights when the issue was returned to the House, something Berger refers to as a “remarkable silence about an extraordinary expansion of jointly accepted goals!”

Justice Hugo Black, whom Berger describes as the “architect of the ‘incorporation’ theory,” relied upon Howard’s earlier statement as well of those of John A. Bingham, a Republican from Ohio who erroneously stated that every word in the proposed amendment was already in the Constitution – as Berger points out, “‘equal protection’ was missing altogether,” and that whatever weight may have been attached to Bingham’s statements, “even his admirers read them restrictively.”

While Bingham waffled back and forth on his understanding of the purpose of the proposed Amendment and its relationship to the Bill of Rights, Senator Lyman Trumbull from Illinois twice reassured his peers that the bill would not affect states not discriminating between its citizens. John Sherman from Ohio reassured his constituents that the first section merely embodied the Civil Rights Act.

The history of the development and ratification of the Fourteenth Amendment is iron-clad. Why, then, has it become the means by which the Bill of Rights has been incorporated against the states when the record clearly indicates it was never intended to?

By 1925, the Progressive era was in full swing and the Court was well on its way to imposing a full rewrite of the Constitution upon the states and the American people, diminishing the division of powers between the states and the general government. Justice Hugo Black, appointed by Franklin Delano Roosevelt, is described in Kevin Guztman’s book, The Politically Incorrect Guide to the Constitution, as the leading proponent of the Incorporation Doctrine. Black’s first purpose was to support the New Deal. By so doing, he “joined a new majority that eschewed the Supreme Court’s traditional (intended) role of checking congressional efforts to legislating beyond its enumerated powers.” The institution that was intended as a check had become a legislative body in its own right, with rulings being handed down to conform with the desired policy preferences of the sitting justices.

Going back to McDonald, the essence of Scalia’s concurring opinion was to criticize Justice Stevens for using his policy preferences in the application of the Palko Test; he took exception to the subjective application of due process to include “new freedoms the Framers were too narrow-minded to imagine.” Social policies and firearms were deemed appropriate to be handled locally, meaning, the by the states. By chiding Stevens for failing to consider Second Amendment “rights” as “fundamental” enough to be incorporated against the states, Scalia misses the point of the Second Amendment: it is a restriction upon the general government, a point he earlier conceded. Simply acknowledging that this right is “deeply grounded in our nation’s history and tradition” is apparently sufficient to substitute the Court’s judgment for amending the Constitution. By claiming power over areas over which the general government was never delegated, issues over which the states clearly retained for themselves, the Imperial Court has fundamentally transformed the federal nature of our Constitutional Republic.

They did this by completely disregarding the history of the proposal and ratification debates surrounding the Fourteenth Amendment. There is virtually no history supporting this made-up doctrine, the means by which our republican system of government has been systematically dismantled; the result is a “one-size-fits-all” central government, in which all rights and powers must emanate from Washington, D.C. The limited general government has assumed a sovereignty of its own, one which has rendered the states mere subsidiaries. The war for American Independence was fought for the right to self-govern, to have social issues decided by the people through their locally-elected representatives. By acquiescing to the overreaching of our present national government into areas in which powers were never delegated, we have turned our backs on principles such as state sovereignty consent of the governed. We have surrendered our revolutionary legacy.

]]>Obsta principiis: Nip the Shoots of Arbitrary Power in the Budhttps://tenthamendmentcenter.com/2018/09/27/obsta-principiis-nip-the-shoots-of-arbitrary-power-in-the-bud/ Thu, 27 Sep 2018 11:19:33 +0000http://tenthamendmentcenter.com/?p=27445John Adams warned us. When you spot even the slightest violation of the Constitution, it’s imperative that you nip it in the bud. In 1774 and 1775, Daniel Leonard wrote a series of essays under the penname Massachusettensis asserting Parliaments unlimited authority in the colonies. A loyalist Boston newspaper published the essays. John Adams penned […]]]>

John Adams warned us. When you spot even the slightest violation of the Constitution, it’s imperative that you nip it in the bud.

In 1774 and 1775, Daniel Leonard wrote a series of essays under the penname Massachusettensis asserting Parliaments unlimited authority in the colonies. A loyalist Boston newspaper published the essays. John Adams penned a lengthy rebuttal to Leonard titled Novanglus. His arguments for the limits on British imperial authority were extremely influential in the colonies.

In his essays, Massachusettensis trivialized the colonists’ grievances, calling them a “distraction owing to parliament’s taking off a shilling-duty on tea and imposing threepence.”

Adams replied with a list of complaints that went well beyond the tax on tea.

“Is the threepence upon tea our only grievance? Are we not in this province deprived of the privilege of paying our governors, judges, &c.? Are not trials by jury taken from us? Are we not sent to England for trial? Is not a military government put over us? Is not our constitution demolished to the foundation? Have not the ministry shown, by the Quebec bill, that we have no security against them for our religion, any more than our property, if we once submit to the unlimited claims of parliament? This is so gross an attempt to impose on the most ignorant of the people, that it is a shame to answer it.”

But even if these were just minor violations of the colonists’ rights, Adams insisted they must stand up against them.

“Obsta principiis,” he wrote; a Latin phrase meaning, withstand beginnings, or resist the first approaches or encroachments. Colloquially, we would say, “nip it in the bud,” which is exactly the phraseology Adams used.

“Nip the shoots of arbitrary power in the bud, is the only maxim which can ever preserve the liberties of any people.”

Adams recognized an important truth. When you allow a government to chip away at the limits on its power, eventually the dam will burst. You will end up with a government exercising virtually unlimited authority – arbitrary power. At that point, it becomes difficult, if not impossible, to stop rein it back in.

“When the people give way, their deceivers, betrayers, and destroyers press upon them so fast, that there is no resisting afterwards.”

This was the situation the American colonists found themselves in. The Parliament claimed virtually unlimited authority to legislate and tax within the colonies. The colonists insisted this was never part of the bargain.

The British system operated based on an unwritten constitution. It was effectively a “living, breathing” constitution that evolved over time and was by and large defined by the government itself. While there were some limits on the powers of the British government established by the Magna Carta, the Petition of Right and the English Bill of Rights, the Parliament was considered sovereign. Many Tories such as Massachusetts Royal Governor Sir Frances Bernard asserted Parliament effectively possessed absolute authority. He wrote:

“The King in Parliament has the sole right of legislation, and the supreme superintendency of the government; and, in this plentitude of power, is absolute, uncontrollable, and accountable to none; and therefore in a political sense, can do no wrong” [Emphasis added]

In the years leading up to the Revolution, Americans started to question this conception of political power. They began to think of a constitution as something existing above the government. The American patriots eventually came to reject the idea that government formed the constitution and instead conceived of the constitution as something that binds government.

As the colonists understood it, the Parliament had authority to legislate for the empire as a whole – to handle foreign relations and foreign trade. But internal governance was supposed to be left to the colonial legislatures. After all, the colonists weren’t represented in Parliament – thus the phrase “no taxation without representation.”

The Americans saw this gradual expansion of parliamentary power in the colonies as “encroachment” into a sphere of authority that rightly belonged to their own colonial assemblies. Adams likened it to cancer.

“The nature of the encroachment upon the American constitution is such, as to grow every day more and more encroaching. Like a cancer, it eats faster and faster every hour.”

Adams went on to identify one specific problem with an ever-expanding government. More and more people become dependent on it for their wellbeing and sustenance. That sets off a vicious cycle resulting in government power increasing to an even greater extent.

“The revenue creates pensioners, and the pensioners urge for more revenue.”

Adams was referring to “pensioners” in a generic sense – people dependent upon government for their livelihood, not necessarily just retirees. He warned that as more and more people become attached to and dependent on the government, the greater society would begin to devolve.

“The people grow less steady, spirited, and virtuous, the seekers more numerous and more corrupt, and every day increases the circles of their dependents and expectants, until virtue, integrity, public spirit, simplicity, and frugality, become the objects of ridicule and scorn, and vanity, luxury, foppery, selfishness, meanness, and downright venality swallow up the whole society.”

In simplest terms, the smallest violations of the Constitution eventually lead to an overreaching, overbearing government operating far outside of its constituted authority. Eventually, it destroys the entire constitutional system. That’s why it’s imperative to nip even the slightest federal overreach in the bud.

We have an advantage over the colonists in that we live under a written Constitution. We can refer directly to the words on the parchment, and we can determine exactly what those agreeing to those words understood them to mean. Unfortunately, most people today still ignore violations of the Constitution as long as they achieve some desired goal, or if a member of their own party perpetrates them. Tenth Amendment Center executive director Michal Boldin calls this attitude “foolish.”

“When you turn a blind eye to violations of the Constitution because your team is doing it, or it helps advance your own political goals, don’t be surprised when future politicians treat things like there are no limits at all.”

The mere act of declaring limits on government doesn’t guarantee that the government will remain constrained. Ultimately, it’s up to us to “nip it in the bud” the moment we see overreach and usurpation.

]]>In Defense of Andrew Jackson: A Book Reviewhttps://tenthamendmentcenter.com/2018/09/25/in-defense-of-andrew-jackson-a-book-review/ Tue, 25 Sep 2018 12:23:06 +0000http://tenthamendmentcenter.com/?p=27623More than anything, Andrew Jackson was a true American enigma. Jackson, who Davy Crockett famously mocked as “the great man in the White House,” occupies an entire epoch in American history. In almost every conceivable way, he was a classic paradox – a benevolent crusader to his friends, and a despotic tyrant to his enemies. […]]]>

More than anything, Andrew Jackson was a true American enigma.

Jackson, who Davy Crockett famously mocked as “the great man in the White House,” occupies an entire epoch in American history. In almost every conceivable way, he was a classic paradox – a benevolent crusader to his friends, and a despotic tyrant to his enemies. As a soldier, he defended his country from British invaders, but as the chief executive, prepared for the bloody invasion of an American state. He openly sympathized with the plight of Indians, but devoted his energies all the same to the forced relocation and oppression of the same. He was a states’ rights advocate with zeal for vengeance against governmental centralization, but one who unambiguously condemned nullification – branding those who defied federal policy as traitors to the union.

According to Bradley Birzer’s new work, In Defense of Andrew Jackson, the backwoods dueling ruffian who captivated the country at a pivotal time still deserves modern attention. Always a foe of a nebulous “aristocracy,” Birzer reveals Jackson to be “the first truly American president” – that is, one that wasn’t shaped by British sensibilities, but by “something unique to this continent.” This characteristic, which became the very foundation of Jackson’s cult of personality, was unmistakably novel for its time.

Prior to Jackson, men often ascended to political office on the basis of their education, hereditary pedigree, and aristocratic connections. However, when Old Hickory assumed the presidency in 1829, he became the first to shatter these archetypes. Branding himself as a man of the people, Jackson appealed to a working-class constituency that distrusted those in power, emerging as the populist champion of a new American age. In this way, Jackson “offered American a more charitable view of the average person, the farmer, the worker, and the producer.”

The most refreshing aspect of Birzer’s work is its deliberate and careful decision to assess Old Hickory in terms of his era, rather than through the scope of modern values and cultural predilections. Always a controversial figure – in his time and our own – Jackson has polarized the universe. Regardless, the author meticulously paints a portrait of Jackson based on his own time rather than ours. In a world where political correctness seems to rule the day, this is entirely refreshing.

Andrew Jackson was known for his fiery temper, and as a man that relentlessly attacked his political enemies for perceived misdeeds. In his youth, Jackson challenged and defeated a man named Charles Dickinson in a duel for insulting his wife, making him the only person to kill a man before assuming the presidency. Jackson also embroiled himself in a series of other street fights, brawls, and other duels. As Birzer notes, the duel with Dickinson nearly cost Jackson his political career. Conversely, a frontier brawl with Thomas Hart Benton ironically preceded a lifelong political relationship with Benton, who eventually became one of the most zealous Jackson supporters in the country.

Until the end of his life, Jackson blamed the death of his wife on his political enemies who chastised Rachel for bigamy in 1828 – pointing out that she failed to legally annul her marriage to her previous husband prior to taking Jackson’s hand. This revelation was an incredible scandal for the time, and caused Jackson and his wife great distress. Famous biographer Robert Remini wrote that Jackson could “hate with a Biblical fury and would resort to petty and vindictive acts to nurture his hatred and keep it bright and strong and ferocious.” Accordingly, Birzer illustrates Jackson’s sincere but furious determination to defend the honor of his wife. In doing so, he held a lifelong grudge against Henry Clay and John Quincy Adams – and never forgave them for the distress he believed caused her death.

Birzer’s analysis of Jackson and American Indian relations may be his most groundbreaking and controversial contribution to the Jackson historiography. Instead of viewing Indians as racially inferior to whites, as is often alleged by modern narratives, Birzer reveals Jackson as a man with nuanced views on Indian culture and Indian relations. Rather than a genocidal maniac that was hell-bent on holocaust against natives, as some academics allege, Jackson “was not the Indian hater of leftist myth.”

Although he believed that tribal culture was inferior to American culture, and western civilization in general, Jackson also considered Indian society as a people under constant threat of American settlers and land claimants – and thus worthy of protection. However, he also feared Indian tribes would become natural allies of Europeans that were intent on recolonization of the Americas, using the War of 1812 and the encouragement of Indian raids as evidence to fuel his position on relocation.

Given these proclivities, some would be surprised to learn that Jackson raised an Indian child, Lyncoya, as his own son. Birzer also reveals that Jackson became incensed when whites mistreated Indians arbitrarily, and at times defended their presence with ferocity. Nevertheless, the Tennessean was infamous for initiating the First Seminole War, where he defied the explicit orders of President James Monroe to refrain from launching an invasion of Spanish Florida – while he was commanded only to defend the southern border of the country. Just over a decade later, he was also the chief advocate of the Indian Removal Act, an 1830 law that allowed the president to universally negotiate for the relocation of Indian tribes to the territories, removing them from the states.

Despite the book’s title, In Defense of Jackson hardly apologizes for Jackson’s penchant for Indian removal. Birzer depicts the relocation campaign as a “humanitarian disaster” that compounded the spread of disease, resulted in the loss of property, and incited desolation in general. However, the author also rightly points out that the most prominent Jackson biographers, such as Remini, conceptualized the president’s stance on Indian removal to be one of compassion rather than an unhinged display of wrath.

Indeed, Remini argued that Jackson honestly thought to remove the Cherokees, Chickasaw, Creeks, Seminoles, and Choctaws from the states would both preserve the livelihood of the Indian tribes and placate the calls from white settlers to remove them. This view contrasts greatly with that of Ward Churchill, the controversial professor of the University of Colorado, who argued that Jackson’s removal policy served as the “practical model” that Adolf Hitler emulated in Germany. Regardless of Jackson’s intentions, however, Indian removal became the biggest blot on his president’s legacy.

Jackson responded to Henry Clay’s attempt to institute a new national bank by denying its legitimacy on constitutional grounds – in perhaps his most purely Jeffersonian, originalist moment. As the author puts it, Jackson viewed the bank only as a device “to arm and empower an American economic aristocracy.”

However, Jackson also went beyond his famous veto message by ordering his treasury secretaries (in the plural) to remove the deposits from the existing national bank, prior to its expiration. This resulted in two secretaries resigning from the Treasury before the deed was finally done by Roger Taney, who quickly won the trust of Jackson. In observance of these events, Birzer rightly points out that only Lincoln rivaled Jackson’s presidency in terms of strength in the 19th century.

Without question, Jackson’s undertakings left precedents that future officeholders would exploit to the detriment of separation of powers and individual liberty. Although Jackson considered the precedents left by his predecessors to be reminiscent of a kingly aristocracy, he certainly did much to swell executive power.

To detractors, the removal of the bank deposits was perceived as a radical step that had the president dictating policy rather than Congress, something never envisioned by those who wrote and ratified the Constitution. In addition, Jackson interjected himself into a labor dispute for the first time in American history, ordering the U.S. military to “put down the riotous assembly” that threatened the construction of the Chesapeake and Ohio canals. As Birzer puts it, Jackson “used the executive office extensively, and largely through his example, a strong presidency came into existence.”

Those who have read my own work will quickly realize that this Tennessean is not a huge fan of Jackson, especially in regard to his position in regard to the Nullification Crisis of 1832-1833. Even still, I am apt to commend Jackson for his unwavering positions against central banking, internal improvements, and federal debt – both of which are subjects that Birzer covers with expertise. As the author puts it, Jackson viewed the Second National Bank as “nothing less than a conspiracy to arm and empower an American economic aristocracy.”

From a constitutional outlook, there were other merits to Jackson’s presidency. Like his renowned predecessor James Madison, he vetoed a bill that authorized the enactment of “internal improvements” – a controversial scheme to subsidize the construction of roads, bridges, and canals on a federal level. In like fashion, Jackson fought against government spending and even eliminated the federal debt entirely – a deed that seems unfathomable today. Indeed, this was a feat that no other president accomplished throughout all of American history.

Unfortunately, it seems to this reader that the title “In Defense of Jackson” does not properly conceptualize the book’s chief premise – and may have been a cunning marketing decision by the publisher. This is because Birzer does more to defend the age which produced a Jackson than Jackson himself. This does not detract from the narrative, but does frame the work in a way that was a bit unexpected. The most important takeaway from Birzer’s work, I believe, is that Jackson’s candor and up-front style should be commended, even if his positions on the pressing issues of his day are not worthy of praise. As the author conveys, whether you loved or hated him, Jackson would make his opinion known.

Rather than defend or criticize Jackson’s views and responses to every conceivable political subject, Birzer’s work instead portrays Jackson as a man who was frank, honest, and consistent – for better or worse. Rather than justify Jackson’s deeds, In Defense of Jackson instead depicts Jackson in the context of his own world. In doing so, Birzer makes a remarkable contribution to the Jackson historiography that effectively tackles Old Hickory’s political disposition in a concise single volume. Whether one enters into its pages admiring or loathing Jackson, Birzer’s book is a must-read.

]]>Republicans’ Responsibility for Socialism’s Comebackhttps://tenthamendmentcenter.com/2018/09/23/republicans-responsibility-for-socialisms-comeback/ Sun, 23 Sep 2018 14:47:54 +0000http://tenthamendmentcenter.com/?p=27619Bipartisan support for Medicare-for-all is not an anomaly.]]>

According to a recent Reuters/Ipsos survey, 70 percent of Americans, including about 50 percent of Republicans, support Medicare for all, the latest incarnation of single-payer health care. Republican support for a health plan labeled “Medicare for all” is not surprising considering that Republican politicians support Medicare and that one of their attacks on Obamacare was that it would harm the program. Furthermore, the biggest expansion of Medicare since its creation — the Part D prescription drug program — occurred under a conservative president working with a conservative Congress.

Conservative Republicans do propose reforming Medicare to reduce its costs, but their proposals are always framed as “saving Medicare,” and most reform plans increase spending. Few conservative Republicans would dare advocate allowing young people to opt out of paying Medicare taxes in exchange for agreeing to forgo Medicare benefits.

Many conservative Republicans favor other government interventions into health care, including many features of Obamacare. In fact, Obamacare’s individual mandate originated as a conservative proposal and was once championed by many leading Republicans. Many other Republicans simply lack the courage to repeal Obamacare, so they say they only want to repeal the “unpopular” parts of the law. It would not be surprising if we soon heard conservatives and Republican politicians talk about defending Obamacare from supporters of socialized medicine.

The same dynamic at work in health care is at work in other areas. For example, the same conservative administration and Congress that created Medicare Part D also dramatically expanded federal control of education with “No Child Left Behind.” Conservative Republicans who (rightly) fight against deficit spending when a Democrat sits in the White House decide that “deficits don’t matter” when the president has an “R” next to his name.

Many Republican politicians — and even conservative intellectuals — will say they are being pragmatic by not fighting progressives on first principles, but instead limiting the damage done by the welfare state. The problem with this line is that, by accepting the premise that government can and should solve all of life’s problems, conservatives and Republicans will inevitably get into a “bidding war” with progressives and Democrats. The only way Republicans can then win is to join Democrats in continually increasing spending and creating new programs. This is why the so-called “conservative welfare state” ends up as bloated and expansive as the progressive welfare state. Refusing to question the premises of the welfarists and socialists is not a pragmatic way to advance liberty.

While progressives blame social crises on the free market, Republicans and conservatives are unwilling to admit the problems were caused by prior government interventions. Thus the passage of Dodd-Frank was aided by claims that the housing bubble was created by deregulation, while Obamacare’s passage benefited from widespread misconception that America had a free-market health care system prior to 2010.

Until a popular intellectual movement arises that is able and willing to challenge the premises of Keynesianism, welfarism, and democratic socialism, while putting forth a positive vision of a free society, government will continue to expand. Fortunately, such a movement exists and is growing as more Americans — particularly young Americans— are studying the ideas of Liberty and working to spread those ideas. If the new liberty movement grows and stays true to its principles, it will be able to defeat the socialists of all parties, including those who call themselves conservative.

]]>Surprise: Secret Court Fails to Oversee and Control Federal Spyinghttps://tenthamendmentcenter.com/2018/09/21/surprise-secret-court-fails-to-oversee-and-control-federal-spying/ Fri, 21 Sep 2018 13:28:54 +0000http://tenthamendmentcenter.com/?p=27439This should be obvious: We can’t depend on the courts to protect our privacy. People often say states don’t need to take action to limit warrantless surveillance because the federal courts will protect us. As one cop put it, “All these devices you speak of, some of which you grossly miscalculate capabilities, require a very […]]]>

This should be obvious: We can’t depend on the courts to protect our privacy.

People often say states don’t need to take action to limit warrantless surveillance because the federal courts will protect us. As one cop put it, “All these devices you speak of, some of which you grossly miscalculate capabilities, require a very intense warrant process.”

But several Foreign Intelligence Surveillance Court (FISC) opinions obtained by the Electronic Frontier Foundation (EFF) through an open records request reveal the judicial body tasked with overseeing and limiting spy agencies such as the NSA struggle to get information about government spying. And when it does uncover abuses, the court finds it difficult to rein the agencies in.

According to the EFF, in three opinions, a FISC judge “raised questions about unauthorized surveillance and potential misuse of a request he had previously granted. In those cases, the secrecy inherent in the proceedings and the government’s obfuscation of its activities made it difficult for the court to grasp the scope of the problems and to prevent them from happening again.”

The release of a declassified memo earlier this year relating to surveillance of a Trump advisor prior to the 2016 election highlighted inherent problems in the FISA process. The memo revealed that the U.S. surveillance state operates with virtually no accountability or oversight, and serves as a political tool for those in power. According to the memo, the findings it reports “represent a troubling breakdown of legal processes established to protect the American people from abuses related to the FISA process.”

The secret FISC oversees “foreign surveillance.” In order for agencies such as the NSA and FBI to spy on Americans for national intelligence purposes, they must get a warrant from the FISC. But as the memo points out, the court can only base its decisions on the information it gets from the agency requesting the warrant. Ultimately, the court depends on complete and honest information from surveillance agencies.

The FISC opinions obtained by the EFF make it clear government spy agencies don’t provide complete and honest information.

“Although many of the newly released opinions appear to be decisions approving surveillance and searches of particular individuals, several raise questions about how well equipped FISC judges are to protect individuals’ statutory and constitutional rights when the government is less than candid with the court, underscoring EFF’s concerns with the FISC’s ability to safeguard individual privacy and free expression.”

According to the EFF, an opinion written by former FISC Judge Thomas F. Hogan reveals that “even the judges approving foreign intelligence surveillance on specific targets have difficulty understanding whether the NSA is complying with its orders, much less the Constitution.”

In the opinion, Hogan orders the NSA to delete information it collected without authorization. Even after the court discovered the spy agency had overstepped a surveillance order, the NSA claimed it had not illegally collected the information. It only admitted to violating “minimization procedures” – restrictions on the use of material, not its collection. Nevertheless, the court held the surveillance was unauthorized. According to the EFF, the opinion also noted that the government’s failure to meet the FISA law’s requirements inhibited the court’s ability to do its job, writing that “the Court was deprived of an adequate understanding of the facts known to the NSA and, even if the government were correct that acquisition [redacted] was authorized, a clear and express record of that authorization is lacking.”

The judge also makes it clear this is not an isolated case, but pretty much par for the course.

“Moreover, the government’s failures in this case are not isolated ones. The government has exhibited a chronic tendency to misdescribe the actual scope of NSA acquisitions in its submissions to this Court. These inaccuracies have previously contributed to unauthorized electronic surveillance and other forms of statutory and constitutional deficiency.” [Emphasis added]

Other opinions obtained by the EFF reveal that government spies knowingly collected information on individuals the court never approved and that the agency routinely failed to declare the actual scope of its surveillance.

This confirms the conclusion of the February FISA memo – the NSA often acts with virtually no oversight or accountability. According to the memo, “material and relevant information was omitted” in the original FISC application to surveil an American citizen, and in the subsequent applications for renewal.

At the time, some pundits dismissed the memo as a partisan attempt to protect Trump. But these actual FISC opinions obtained by the EFF confirm ongoing and deliberate actions by government spy agencies to withhold information from the court and to unilaterally expand its own surveillance authority.

Simply put, the FISC depends on government transparency and the government keeps secrets.

Given this reality, it should come as no surprise that as of 2016, the FISC had only denied 51 warrant requests – ever – since its establishment in 1979. Thirty-four of those denials came in a single year – 2016. To put that into perspective, the FISC approved 39,195 requests without modification. That means the court approves 99.998% of the warrant requests. It basically serves a rubber stamp for the FBI, the DOJ and the NSA.

We can’t rely on Congress to rein in the surveillance state. It reauthorized Sec. 702 of the FISA Amendments Act even though members of the House Intelligence Committee knew about the abuses chronicled in the memo. And we can’t count on the courts to hold keep agencies like the NSA in check either. The opinions obtained by the EFF make that abundantly clear.

This underscores the importance of states taking action to limit warrantless surveillance.

Michigan provided a blueprint states can use to take on the massive, overreaching federal surveillance state. A new law went into effect in Michigan in June 2018 barring “material support or resources” for all warrantless federal surveillance programs. By denying the NSA and other federal spy agencies personnel and resources, we can at least hinder the collection and use of warrantless data. States with NSA facilities could even potentially shut them down by denying them state resources such as electricity and water. If enough states take action, we can box the federal spies in and shut them down.

When people remember or discuss the address, they most often recall his warning against political parties, his admonition to avoid entangling foreign alliances, and his insistence that “religion and morality are indispensable supports” to political prosperity. But we often read right over an even more poignant warning in Washington’s address; a warning we failed to heed to our own detriment.

Washington advised that we should hold tight to the original Constitution and avoid giving in to the temptation to turn it into a “living, breathing” document that changes at the whim of whoever holds power. As Washington put it, we must “resist with care the spirit of innovation upon its principles, however specious the pretexts.”

Washington wrote that “one method of assault may be to effect, in the forms of the Constitution, alterations which will impair the energy of the system, and thus to undermine what cannot be directly overthrown.”

We see these alterations in the Constitution all the time – mostly courtesy of the federal courts as they have expanded various clauses to “authorize” federal actions that were clearly left to the states and the people. Thanks to these constitutional “alterations,” the federal government has interjected itself into almost every area of our lives, from dictating how much water flushes down our toilets to the kinds of light bulbs we can screw into our fixtures.

Of course, we can’t place blame solely on the courts. Presidents have seized a wide range of unconstitutional powers, further altering and undermining the constitutional system. As just one example, abandoning the constitutional division of war powers and allowing the president to initiate military operations has led to more than two decades of endless warfare.

And Congress has done its part, punting much of its responsibility to the executive branch by passing broadly worded bills that allow executive branch bureaucrats to essentially write the law after the fact.

Washington warned us that these kinds of alterations would undermine the system. James Madison, who wrote the first draft of Washington’s address, offered a similar warning, emphasizing the importance of a fixed Constitution. In a letter to Henry Lee, Madison wrote:

“I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense!”

Washington wrote that “time and habit are at least as necessary to fix the true character of governments as of other human institutions.” He warned that constantly changing the meaning of the Constitution through government action would ultimately prevent any kind of stable system from developing.

“Experience is the surest standard by which to test the real tendency of the existing constitution of a country; that facility in changes, upon the credit of mere hypothesis and opinion, exposes to perpetual change, from the endless variety of hypothesis and opinion; and remember, especially, that for the efficient management of your common interests, in a country so extensive as ours, a government of as much vigor as is consistent with the perfect security of liberty is indispensable.”

We certainly see this tendency today. The federal government makes up its own rules as it goes, completely untethered from any foundational principles or absolute limits.

Washington believed that our very liberties were dependent on keeping the government constrained within its proper constitutional role. He wrote that a government “with powers properly distributed and adjusted” would serve as liberty’s “surest guardian.”

“[Liberty] is, indeed, little else than a name, where the government is too feeble to withstand the enterprises of faction, to confine each member of the society within the limits prescribed by the laws, and to maintain all in the secure and tranquil enjoyment of the rights of person and property.”

Those who embrace the idea of a “living, breathing” Constitution argue that it must be flexible to “change with the times.” Washington wasn’t ignorant of this fact. He admitted the need for flexibility, but insisted change must happen within the Constitutional system itself through the amendment process, not via political maneuvering by the government itself.

“It is important, likewise, that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position. The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositaries, and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern; some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them. If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield.” [Emphasis added.]

Sadly, Washington’s advice has not been followed. Virtually every change to America’s constitutional system has been by usurpation. The bastardized federal government has run up over $21 trillion in debt. It fights unconstitutional wars across the globe. It spies on virtually everybody and violates the right to keep and bear arms. It tells you what kind of insurance to buy and what kind of plants you can grow in your backyard.

It reaches into every corner of your life, attacking your liberty at every turn.

Washington was right. Whatever transient benefit the federal government may have brought by these actions has been “overbalanced” by evil.

Two hundred and twenty-two years ago, George Washington left us with sage advice. Perhaps now it’s time we begin to begin to heed it.